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text: Contemporary Halakhic Problems, Vol II
  בעיות הלכתיות עכשוויות, כרך ב
  Contemporary halakhic problems, by J. David Bleich, 1977-2005
  
  
  Contemporary Halakhic Problems, Vol II
  
  Editor's Foreword
  
  The appearance of the second volume of Rabbi David Bleich's <i>Contemporary Halakhic Problems</i> is testimony both to the vitality of Halakhah in its encounter with contemporary life and to Professor Bleich's mastery of his subject matter.
  Neither the author nor the editor presumes to offer practical guidance in halakhic observance for the interested reader; that is beyond the purpose of this volume. It seeks to do something which, if less practical, is perhaps more significant: to acquaint the reader with the remarkable scope of the Halakhah's jurisdiction, the relevance of its method to changing conditions, and the readiness of contemporary halakhists to cope with problems that in many ways are unprecedented.
  It is my hope that, given the fecundity of halakhic writing both here and in Israel, and the growing interest by readers in this once esoteric and arcane field, publication of this second volume by our distinguished author will inspire him to additional volumes in this series.
  NORMAN LAMM
  Editor
  June 23, 1982
  
  Preface
  
  Much of the material presented in this volume originally appeared in my "Survey of Recent Halakhic Literature" which is regularly featured in the columns of <i>Tradition</i>. Those items have been expanded and amplified for presentation in their present form. A portion of this material was first published in the <i>Journal of Halacha and Contemporary Society</i>. I am indebted to the editors of both journals for permission to reprint those articles. Some sections appear here for the first time. Portions of this work served as the subject matter of <i>shi'urim</i> and seminars conducted on behalf of students of the Rabbi Isaac Elchanan Theological Seminary, the Albert Einstein College of Medicine and the Benjamin N. Cardozo School of Law.
  The present volume has been divided into two sections. Part I is composed of chapters each of which contains a series of relatively brief discussions of related issues in a given area. The material presented in this section is to a large extent, although by no means exclusively, drawn from current periodical halakhic literature. Each of the chapters in Part II is devoted to an extensive analysis of a single halakhic topic and focuses upon a more wide-ranging array of sources.
  This work is not intended to serve as a practical halakhic guide, and, indeed, no attempt has been made to present definitive <i>psak halakhah</i>. It is devoted to an analysis of Halakhah and halakhic reasoning rather than to the formulation of halakhic decisions. As such, it is directed primarily to those who have at least some background in the study of rabbinic literature but lack the requisite skills or the leisure to assimilate and analyze the maze of responsa pertaining to the topics treated in this volume. It is intended as an invitation to the reader to join in the noblest of Jewish activities and the supremest of joys—the study of Torah.
  I wish to express my thanks to the Memorial Foundation for Jewish Culture for a grant to defray expenses incurred in preparation of this manuscript; to Dr. Norman Lamm for initiating the Library of Jewish Law and Ethics; to my brother-in-law, Rabbi Mordecai Ochs, for his insightful reading of the manuscript and his many valuable comments; to my good friends, Dr. Fred Rosner, Chairman, Department of Medicine, Long Island Jewish Hospital, and Rabbi Judah Dick, Assistant Corporation Counsel, City of New York, for making their knowledge and expertise readily available to me; to Rabbi Jacob B. Mandelbaum of the Mendel Gottesman Library of Yeshiva University whose encyclopedic bibliographic knowledge has been of immeasurable aid; to Mrs. Sarah Levy of the Mendel Gottesman Library, who goes far beyond the call of duty in placing the resources of the library at my disposal; to Miss Chaya Gordon of the Mendel Gottesman Library for her constant helpfulness and assistance; and especially to my students for their incisive and relentless questioning. My thanks also to the publisher of this volume, Mr. Bernard Scharfstein, for his indulgence and patience and to Mr. Irving Ruderman of Ktav Publishing House for his painstaking efforts in shepherding the manuscript through the various stages of publication.
  Above all, I am grateful to the Almighty for my cherished collaborators—the members of my family. Our prayer to the Almighty is that we continue to be numbered among the <i>mashkimim le-divrei Torah</i> and, to paraphrase the words of the <i>hadran, ke-shem she-azartanu le-sayyem sefer zeh, ken ta'azrenu le-hatḥil sefarim aḥerim u-le-sayyemam lilmod u-le-lamed lishmor ve-la'asot u-le-kayyem</i>.
  
  Introduction
  
  It has been said that the page of a Gemara represents in capsule form the long history of Jewish exile: The Mishnah was composed in <i>Erez Yisra'el;</i> the text of the Gemara which follows was written in Babylonia; Rashi's commentary hails from France; the <i>Tosafot</i> are the product of French and German schools; the marginal glosses represents Polish and Lithuanian scholarship; and finally, the blank space of the margins represents the American contribution to talmudic scholarship. Fortunately, this categorization of the American contribution is no longer correct. <i>Akhshar dara;</i> this generation has attained a level of Torah scholarship which far surpasses the fondest anticipations of a previous age. R. Chaim of Volozhin once remarked that as history unfolds the fulcrum of Torah scholarship circumnavigates the globe and that the final hostel of Torah prior to the advent of the Messiah will be America.
  Shortly after the publication of the first volume of this work, I was asked to describe the audience I had intended to address, i.e., to indicate for whom the work was intended. My instinctive response was that the work was intended <i>"le-kol man de-ba'i,"</i> an Aramaic expression employed in modern Hebrew usage to mean "To whom it may concern" but which a literal translation would render "To whosoever has need."
  Surprisingly, the audience for works of rabbinic scholarship has proven to be both larger and more diverse than might have been anticipated. There has come into existence a growing cadre of individuals with a thirst for a thorough understanding of Jewish teaching. Included among their number are yeshiva students and graduates seeking halakhic sources and items of information to fill lacunae in their studies, persons involved in the formulation of public policy who are genuinely interested in exploring Jewish values, newly-committed Jews lacking a thorough religious education, and laymen desirous of studying Torah for its own sake. It is this audience, composed of both the committed and the seeking, which has been responsible for the phenomenal burgeoning of works of rabbinic and talmudic scholarship.
  Some sectors of this newly-emerging audience are as much at home in Hebrew as in English, but other segments have not mastered the intricacies of rabbinic Hebrew. Fortunately, Torah scholarship in the United States has not only come of age but has harnessed the vernacular and employed it as a means of addressing both students and the masses in their own idiom, much in the same manner as Arabic was used by the scholars of the generations of Sa'adia Ga'on and Rambam. Of course, writings published in Hebrew achieve a permanence to which works in other languages cannot, and indeed should not, aspire. Nevertheless, the need for publications in the vernacular, even if transient, is real nonetheless.
  All works of rabbinic scholarship serve to fill the authors' needs no less than those of the readers. In truth, it may well be the case that many such works are composed primarily to serve the authors' own need rather than for purposes of publication. It should be remembered that originally it was forbidden to commit any portion of the Oral Law to writing. This practice was ultimately sanctioned only because of the very real danger that, were it not committed to writing, the Oral Law might well have been forgotten in whole or in part. It may cogently be assumed that it was feared that not only might the Oral Law be forgotten by future generations but that it might be forgotten by the very generation which failed to record its own novellae and insights. Writing, by its very nature, forces concentration of thought, organization of material, critical analysis and coherent argumentation. As such, committing thought to writing serves not only to preserve material in one's memory but also as an invaluable study aid to the author. The present volume, then, is designed "for whosoever has need"—of whom the author's need is perhaps the greatest.
  This sentiment finds concrete expression in Halakhah itself. The last of the 613 biblical commandments requires that each Jew write a <i>Sefer Torah</i>. <i>Tur Shulḥan Arukh, Yoreh De'ah</i> 470, records a controversy with regard to the nature of this obligation. Most early authorities understand the commandment in a quite literal sense, viz., as obligating each individual to transcribe the Pentateuch on a parchment scroll in accordance with the regulations governing the writing of a <i>Sefer Torah</i>. Rabbenu Asher (Rosh), however, is of the opinion that the <i>mizvah</i> was to be performed in this manner only during that period of Jewish history in which a <i>Sefer Torah</i> in the form of a parchment scroll was used for purposes of study; in subsequent epochs the <i>mizvah</i> assumes an entirely different guise. Accordingly, <i>Tur</i> writes:
  But at present when [people] write a <i>Sefer Torah</i> and place it in the synagogue [solely] to read from it in public the positive commandment binding upon each [person] of Israel who is capable is to write the books of the Torah, Mishnah, Gemara and their commentaries [in order that] he and his children may study them. The [purpose] of the commandment regarding writing the Torah is in order to study there-from as it is written, "[And now write unto yourselves this song] and teach it unto the children of Israel; put it in their mouths." Through the Gemara and its explanation one will know the meaning of the <i>mizvot</i> and the laws in a proper manner. Therefore, those are the works which a person is commanded to write.
  It is beyond dispute that Rosh maintains a change has occurred in the statutory requirement for fulfilling the <i>mizvah</i> of writing a <i>Sefer Torah</i>. There is, nevertheless, a disagreement between the authors of <i>Bet Yosef</i> and <i>Perishah</i> in their respective commentaries on the <i>Tur</i> with regard to the correct interpretation of Rabbenu Asher's novel ruling. <i>Bet Yosef</i> maintains that, even according to the position of Rosh, the writing of a <i>Sefer Torah</i> is a necessary condition of fulfillment of the commandment even in our day. In the opinion of <i>Bet Yosef,</i> Rosh simply argues that the writing of a <i>Sefer Torah</i>, in itself, is not sufficient for fulfillment of the <i>mizvah;</i> in order to discharge one's obligation <i>in toto</i> it is also necessary to write or copy works which are actually used for study. This analysis is rejected by <i>Perishah</i>, whose interpretation is more faithful to the literal meaning of Rosh's statement. <i>Perishah</i> understands <i>Rosh</i> as asserting that the nature of the <i>mizvah</i> has changed entirely. In the opinion of <i>Perishah</i> it is, at present, not at all necessary to write a <i>Sefer Torah</i> and, indeed, writing such a parchment scroll would not constitute even partial fulfillment of the <i>mizvah;</i> currently, the <i>mizvah</i> consists exclusively of writing or copying those works which are actually used for purposes of study.
  <i>Taz, Yoreh De'ah</i> 270:4, concedes that <i>Perishah</i>'s understanding of Rosh's position is entirely compatible with the text but declares that <i>Bet Yosef</i>'s analysis must nevertheless be correct "for how can the commandment 'And now write unto yourselves' be abrogated with the passing of generations?" For that matter, <i>Taz</i>' objection may be raised with regard to <i>Bet Yosef</i>'s interpretation as well. The biblical commandment is couched in the words "And now write unto yourselves this song" (Deuteronomy 31:19). The term "song" (<i>shirah</i>) is understood as referring to the Pentateuch. If so, the <i>mizvah</i> is clearly defined as requiring the copying of a specific text referred to as "this song." How, then, is it possible for this term, "with the passing of generations," to come to denote much more than the text of the <i>Sefer Torah?</i>
  The key to understanding Rabbenu Asher's position lies in the interpretation of the phrase <i>"ha-shirah ha-zot</i>—this song." In context, the phrase would appear to refer solely to the immediately following poetic section recorded in <i>Parshat Ha'azinu</i> and indeed Rashi, in his commentary on the Bible, does interpret the phrase in precisely this way. However, the authorities who posit the verse as a commandment bidding each Jew to write the entire Penateuch endow the phrase <i>"ha-shirah ha-zot"</i> with a meaning which goes beyond its literal interpretation. A number of explanations have been advanced seeking to establish an exegetical basis for this understanding of the verse. Perhaps the most significant of these is presented by Rambam, <i>Hilkhot Sefer Torah</i> 7:1. Rambam declares, "It is a positive commandment incumbent upon every man in Israel to write a <i>Sefer Torah</i> for himself as it is written, "And now write unto yourselves this song," i.e., write for yourselves the Torah which contains this song for it is not [permitted] to write sections of the Torah." The term "this song" thus acquires a contextual meaning much broader than its literal denotation. Literally, the term refers only to the "song" of <i>Ha'azinu;</i> but since it is forbidden to write fragments or individual sections which are not endowed with the sanctity of a Torah scroll, it is not possible to understand the commandment as requiring simply the writing of the section containing the song of <i>Ha'azinu</i>. In practice, then, declares Rambam, the commandment must require the writing of the Pentateuch in its entirety.
  The difficulties associated with the position of Rabbenu Asher may be resolved if it is assumed that this authority translated the term "song" as denoting literally the Torah in its entirety. Indeed, the Gemara in three instances, <i>Hagigah</i> 12b, <i>Nedarim</i> 38a and <i>Hullin</i> 13b, clearly interprets the word "song", both in this and in other contexts, as a reference to the Pentateuch in its entirety.1<i class="footnote">For an illuminating explanation of why the Torah is termed a “song” see R. Naphtali Zevi Yehudah Berlin, <i>Ha‘amek Davar</i>, Introduction.</i> Thus, according to Rosh, a literal reading of Deuteronomy 31:19, yields an obligation to transcribe the full text of the Pentateuch.
  However, the term "song", interpreted as meaning Torah, is not limited to denotation of the Written Law exclusively. <i>Megillat Ta'anit</i>, chapter 4, presents a highly significant interpretation of the concluding phrase of this very verse, "and teach it to the children of Israel, place it in their mouths." <i>Megillat Ta'anit</i> explains that the phrases "teach it to the children of Israel" and "place it in their mouths" are not at all synonymous expressions. Rather, "teach it" refers to the "song" of the immediately preceding phrase, i.e., the Written Law, while the phrase "place it in their mouths" is understood as a reference to the Oral Law which must be "placed in the mouth" since it may only be transmitted orally.2<i class="footnote">Cf., R. Yitzchak Ze’ev Soloveitchik, <i>Ḥiddushei Maran Riz ha-Levi al ha-Torah</i> (Jerusalem, 5723), p. 16a. See also the commentary of <i>Ba‘al ha-Turim</i>, Deuteronomy 31:19.</i>
  This analysis leads, in turn, to a resolution of the difficulty concerning the position of Rabbenu Asher. It may be assumed that Rosh understood the word "song" as literally referring to the complete corpus of the Torah, including both the Oral Law and the Written Law. Yet, in context, the biblical passage could not denote the Oral Law, since at the time the commandment was issued it was as yet forbidden to commit the Oral Law to writing. Nevertheless, the commandment is not to be understood as ever having been restricted to the Written Law specifically. Rather, the verse must be understood as requiring the writing of as much of the Torah as may licitly be commited to writing. The precise material which must be transcribed in fulfilling this <i>mizvah</i> will vary in accordance with whether or not the Oral Law may be recorded. Thus, the difficulty raised by <i>Taz</i> is resolved. Although in days gone by the commandment mandated only the writing of a <i>Sefer Torah</i>, at present, since the Oral Law may now be transcribed, the obligation is discharged through writing or copying other works. Yet the <i>mizvah</i> has undergone absolutely no change with "the passing of generations."3<i class="footnote">An incisive interpretation of the verse in question is attributed to a number of scholars including the Hasidic master, R. Abraham Mordecai Alter of Ger. The verse reads: “And <i>now</i> write unto yourselves this song.” According to the view of Rabbenu Asher the meaning of the word “now” is quite precise. According to Rabbenu Asher the commandment to write this song, i.e., the Torah scroll, applies only <i>now</i>, for in the future fulfillment of the commandment will require the transcription of yet other works.</i> According to <i>Bet Yosef</i> the commandment in our epoch is for the writing of both the Written Law and the Oral Law. <i>Perishah</i> maintains that the commandment mandates the transcription of sacred writ for purposes of study explicitly. Moreover, according to <i>Perishah</i> the commandment mandates the transcription of any Torah work which will be used for study purposes, whether the work be a Bible, Gemara or commentary, but does not encompass a parchment scroll which is to be "placed in the synagogue to be read from in public" rather than used for purposes of study.
  Various authorities rule that it is not necessary to write an entire <i>Sefer Torah</i> in order to fulfill the <i>mizvah</i>.4<i class="footnote">See Rambam, <i>Hilkhot Sefer Torah</i> 7:1; Rema and <i>Taz, Yoreh De‘ah</i> 470:1; and <i>Minḥat Ḥinnukh</i>, no. 613. Cf., however, <i>Sha’agat Aryeh</i>, no. 34.</i> According to their view the obligation may be discharged by writing even a single letter of the Torah. This ruling is based upon the reasoning that a <i>Sefer Torah</i> lacking even a single letter is incomplete and hence, properly speaking, is not a <i>Sefer Torah</i>. It would appear that this principle is equally applicable according to the ruling of Rosh that the obligation is to be discharged by writing other works. Hence, according to Rosh, the <i>mizvah</i> may be fulfilled by transcribing a portion of a sacred book as well.
  Indeed, it may be argued that the <i>mizvah</i> is fulfilled in the optimum manner by committing Torah novellae to writing. Since "Even that which a conscientious student will one day teach in the presence of his master was already told to Moses at Sinai" (Palestinian Talmud, <i>Pe'ah</i> 2:4) the Torah is, in a fundamental sense, incomplete until that novellum has been formulated.5<i class="footnote">Cf., <i>Sefer Ḥasidim</i>, no. 570: “Anyone to whom the Holy One, blessed be He, reveals a matter and he does not write it even though he is able to write, [that person] steals from Him who revealed [the matter] to him. For He revealed to him only that he might write.” See also <i>Brit Olam</i>, ad loc. In a kabbalistic vein, R. Zadok ha-Kohen of Lublin writes that just as the original act of creation took place through Torah so is creation continually renewed through formulation of Torah novellae. Those novellae when endowed with permanence through transcription constitute “eternal life.” R. Zadok ha-Kohen further comments that an individual may have been created specifically in order to serve as the medium through which a particular insight is revealed. Hence, if that individual fails to transmit this insight orally to his students or to record it in writing for posterity he may be required to undergo reincarnation in order that this <i>telos</i> be achieved. See <i>Maḥshevot Ḥaruẓ</i> (New York, 5715), pp. 113-114.</i> Committing such novallae to writing is, then, a completion of the transcription of the Torah. Accordingly, it follows that, fundamentally, an author writes for his own benefit,6<i class="footnote">I am indebted to my son for pointing out that committing Torah novellae to writing redounds to the author’s benefit in another sense as well. The Gemara, <i>Menaḥot</i> 99b, declares that one who forgets even a single detail of Torah transgresses a negative commandment. R. Moshe Sternbuch, <i>Mo‘adim u-Zemanim</i>, VIII, Introduction, cites a statement of R. Chaim of Volozhin to the effect that this prohibition applied only when the Oral Law was as yet not committed to writing. Under such circumstances there was reason to fear that any matter, once forgotten, would not be transmitted to subsequent generations. However, declared R. Chaim of Volozhin, once the Oral Law has been committed to writing it is readily available for posterity. Rabbi Sternbuch observes that one who does not commit his own insights to writing places himself in the position of causing them to be forgotten. Such insights, once formulated, constitute an integral part of the Oral Law and hence are subsumed under the prohibition “Only take heed to yourself and keep your soul diligently lest you forget” (Deuteronomy 4:9).</i> for his writing constitutes the optimal fulfillment of his personal commandment "And now write unto yourselves this song and teach it to the children of Israel."
  The steadily increasing intense interest in rabbinic scholarship in this country joins authors and audiences in the noblest of endeavors, the study of Torah. From time immemorial Jews have experienced the study of Torah as the greatest of all possible pleasures, as a delight which gives purpose to life and overshadows all manner of trial and tribulation. In the words of the Psalmist, "Unless Thy Torah had been my delight, I should have perished in my affliction" (Pslams 119:92).
  In America, to our great dismay, this has not always been the case. Striving to dissuade his coreligionists from emigrating to the United States, Hafez Hayyim wrote, "… we see in the crucible of experience that the children who are careful to walk in the paths of their fathers are very, very few, particularly children who are born there; for, as is known, it is not possible to educate them there in the path of Torah or in the obligations of a Jew."7<i class="footnote"><i>Shem Olam, Kuntres Nefuẓot Yisra’el</i>, chap. 2; see also ibid., chap. 9.</i> The greatest cause for an optimistic reassessment of the future of Judaism in America is the resurgence of Torah study in this generation. Once again, young and old are joined in a preoccupation that links generations in the shared pleasure of Torah study not merely as a quest for information but as an end in itself. To paraphrase the words of the blessing recited each morning: May the words of Torah always be sweet to our mouths and to the mouths of all of Israel; may we and our children and our children's children, as well as the children of the entire people of Israel, ever be students of Torah for its own sake.
  Cf., however, R. Solomon Schreiber, <i>Hut ha-Meshulash he-Hadash</i> (Tel Aviv, 5723), p. 19, who records the reason advanced by the renowned R. Nathan Adler of Frankfurt am Main for not having recorded his Torah novellae. Dispensation to commit the Oral Law to writing is predicated upon our inability to remember its contents without a written record. R. Nathan Adler possessed a prodigious memory. Claiming that he had never forgotten any item of Torah knowledge, R. Nathan Adler declared that, for him, the prohibition against recording the Oral Law remained in full effect since there was no danger that he might forget.
  
  Part I
  
  Prelude
  
  <i>"All grasping the sword" (Song of Songs 3:8). R. Meir says, all were sharpening the Halakhah as a sword so that if a specific case were to be put before them, Halakhah would not [find it necessary to] call to them</i>.
  BEMIDBAR RABBAH XI, 7
  
  Chapter I Sabbath and Festivals
  
  <i>Whosoever prays on Sabbath eve and recites "And the heavens and the earth were completed" (Genesis 2:1) is accounted by Scripture as if he became a partner to the Holy One, blessed be He, in the work of creation</i>.
  SHABBAT 119a
  Diverse aspects of the Sabbath experience find expression in the various biblical texts which serve as the basis of this commandment. The Decalogue is recorded twice in the Torah. The first presentation of the Ten Commandments in Exodus 20 occurs in conjunction with the narrative concerning the receiving of the Torah at Mount Sinai; the second is contained in the valedictory of Moses and recorded in Deuteronomy 5. The two versions differ radically with regard to the formulation of the commandment concerning Sabbath observance. In Exodus 20:8 the Torah reports that the first tablet contained the exhortation: <i>"Zakhor et yom ha-Shabbat le-kadesho</i>—Remember the Sabbath day to keep it holy." The underlying rationale of the commandment follows immediately: "Six days shall you labor and do all your work; but the seventh is a Sabbath unto the Lord your God…for in six days the Lord made heaven and earth, the sea, and all that is in them and He rested on the seventh day…." In this context <i>Shabbat</i> is firmly rooted in the creation of heaven and earth and it is the act of creation which we are bidden to remember through observance of the Sabbath. The word <i>zakhor</i>—remember—has a historical flavor, referring to events of the distant past; we are told to refer back to past history, to the six days in which God created heaven and earth. Thus the Sabbath stands as an eternal memorial to the very first <i>Shabbat—Shabbat Bereshit</i>—the Sabbath of creation.
  In Deuteronomy 5:12 the admonition is couched in different terms. <i>"Shamor et yom ha-Shabbat le-kadesho</i>—Observe the Sabbath day to keep it holy." The rationale incorporated in this formulation is a completely different one: "And you shall remember that you were a servant in the land of Egypt and the Lord your God brought you out of there with a mighty hand and with an outstretched arm; therefore the Lord your God commanded you to keep the Sabbath day." Here the Torah bids us remember that we were once slaves in Egypt and emphasizes that it was to this end that God commanded us to institute the Sabbath.
  The connection between <i>Shabbat</i> and our one-time slavery in Egypt is far from apparent. Passover is readily and obviously accepted as a festival of deliverance; other festivals are born of the peoplehood of Israel which became a reality at the heels of the pursuing Egyptian hordes and hence are properly referred to as "a remembrance of the Exodus from Egypt." But in what sense are we to understand the Sabbath as a memorial to our enslavement in Egypt? Although there appears to be no intrinsic connection between the seventh day of the week and the Exodus, yet so fundamental is this relationship that the Gemara, <i>Pesaḥim</i> 117b, states that the clause "<i>zekher li-zi'at mizrayim</i>—a remembrance of the Exodus from Egypt" is indispensable in the formula of the <i>kiddush</i> of <i>Shabbat</i> eve. Omission of this phrase is equivalent to nonrecitation of the <i>kiddush</i> and consequently one who has failed to make proper mention of the Exodus is deemed to be remiss in discharging his obligation with regard to recitation of <i>kiddush</i>. Surely, then, the Sages recognized an intrinsic relationship between <i>Shabbat</i> and the Exodus.
  The continual recurrence of the Sabbath at the close of each seven-day cycle is a perpetual testimony not merely to the act of creation but, since creation presupposes a Creator, to the very existence of the Creator of the universe. For generations the Sabbath was imbued with this meaning alone and throughout the millenia preceeding the Exodus, <i>Shabbat</i>, in its simplicity, testified solely to the existence of the Deity. In subsequent ages, <i>Shabbat</i> was to serve as testimony to yet another principle of faith.
  The <i>Shabbat</i> before Passover is commonly known as "<i>Shabbat ha-Gadol</i>—the Great Sabbath." One of the reasons given for this distinctive appellation is that in the year of the Exodus the tenth day of Nisan fell on a <i>Shabbat</i>. The Jews in Egypt were commanded to purchase animals to be used for the first paschal sacrifice. Although not to be slaughtered until the fourteenth day of the month, the animals were bought from the Egyptians four days previously. The purpose for which those animals were acquired was by no means a secret. Boastfully, the Jews taunted the Egyptians and demonstrated that the animals deified by Egypt were powerless to prevent their own slaughter. In the natural course of events the Egyptians might have been expected to rise to the occasion and to wreak havoc upon their tormentors. But miraculously they found themselves incapable of causing the slightest harm to the Jews in their midst. This miracle, and with it the miracle of the Exodus itself, began to unfold on the <i>Shabbat</i> preceding <i>yezi'at mizrayim</i>. From that day on, the day of the "great" miracle, divine providence was accepted as an empirical verity. Not only the Jewish people but all inhabitants of the world became aware of the truth of providence and with it of divinely bestowed reward and punishment. Until that moment the world could well accept the principle of <i>Shabbat Bereshit</i> and yet consider the Deity to to be a transcendental God who created the universe but who was no longer involved in, or concerned with, its daily activities. With the inability of the Egyptians to prevent the Jews from making active preparation to slaughter the animals deified by the Egyptians, it became publicly manifest that God has not withdrawn from the world and that He continues to exercise providence over His creatures.
  In positing the doctrine of continuous creation the Sages affirm that in the absence of ongoing providence the world could not remain in existence. They describe God's activity by stating that "in His beneficence He renews continually each day the work of creation." "<i>Ve-atah meḥayeh et kulam</i>— You give life to all of them" (Nehemiah 9:6) is understood quite literally as acknowledging that God infuses His creation with life. God is constantly bestowing the very essence of existence upon everything in the universe. "Being" is portrayed as itself contingent upon divine being. The relationship between the Creator and the world is not analogous to the relationship between an artisan and the artifact which he has created. An artisan simply creates a vessel but does not enter into an ongoing relationship with it; <i>qua</i> artisan he neither manifests further interest regarding its ultimate disposition nor feels ongoing concern with regard to how it may fare when exposed to the vicissitudes of time. As far as the artifact is concerned it has no further need for the ministrations of the artisan. With God the opposite is true. God did not simply create the world in the beginning of time; rather He recreates the world every single moment and thus maintains the universe in existence. Without His continuous concern the world would be reduced to nothingness.
  <i>"Zakhor ve-shamor be-dibbur eḥad ne'emru,"</i> declares the Gemara, <i>Rosh ha-Shanah</i> 27a. The two formulations of the commandment concerning <i>Shabbat</i> were uttered simultaneously. <i>Zakhor</i> is impossible without <i>shamor;</i> they are two sides of the same coin. The world could not have remained in existence and its mode of creation could not be remembered for long if not for the fact that God constantly watches over it. This concept is embodied in the second formulation of the Ten Commandments and the "single utterance" was employed in order to teach man that the original creation and continuous creation are one and the same. Before the Exodus man was incapable of perceiving this verity. In any earlier period it would simply have been beyond his understanding. Only after man had perceived divine providence could he recognize the all-enveloping nature of this providence and that it guides not only his daily life but his very existence.
  Sabbath Candles for Young Girls
  The kindling of Sabbath candles is one of the most widespread of ritual observances and is even practiced in countless homes where observance of other ceremonies and rituals has lapsed. Indeed, the presence of Sabbath candlesticks is commonly recognized as a distinctive feature of a Jewish household.
  Although every adult Jew, both male and female, is obligated to kindle Sabbath lights, in practice, the mistress of the house discharges this obligation on behalf of all who share her home and table. Indeed, the husband has no right to preempt this <i>mizvah</i> and deprive his wife of this privilege (see Magen Avraham, Oraḥ Hayyim 263:6). In contradistinction to the provisions pertaining to lighting the Chanukah menorah, it is not deemed an enhancement of the <i>mizvah</i> for each person individually to kindle Sabbath candles. The function of the Chanukah menorah is <i>pirsumei nisa</i>—publicization of the miracle. Accordingly, the greater the number of <i>menorot</i> kindled, the greater the publicization of the miracle. This consideration is absent with regard to Sabbath candles and hence individual kindling of Sabbath lights is not deemed to be of particular merit.
  At no time was it common practice for unmarried girls living at home to kindle Sabbath candles in addition to those lit by the mistress of the house. Such a custom did, however, exist in some circles, particularly among members of the immediate families of a number of Hasidic <i>rebbeyim</i>. Of late, the Lubavitcher <i>Rebbe</i>, Rabbi Menachem Mendel Schneerson, has repeatedly urged that this practice be adopted by all unmarried women. In public discourses he has stressed the importance of this <i>mizvah</i> as well as its pedagogical value and has dwelled upon the mystical ramifications of the kindling of Sabbath candles. Many have perceived yet another reason for this call. In recent years, the number of <i>ba'alei teshuvah</i>, persons "returning" to observance of the tenets of Judaism, has increased phenomenally. The vast majority of these <i>ba'alei teshuvah</i> are young men and women. The Lubavitch movement has been extremely active on campuses throughout the country and has been highly influential in augmenting the ranks of <i>ba'alei teshuvah;</i> many of these young people were raised in homes in which Jewish observances have been virtually nonexistent and, frequently, the lighting of Sabbath candles is one of the first observances introduced into the home by a daughter or son. It is, of course, entirely proper for an unmarried girl (or, for that matter, an unmarried boy) to kindle Sabbath candles in a home where the mother does not observe this practice. In such circumstances, the girl (or boy) is duty-bound to discharge her (or his) own obligation in this regard—and in doing so effects a fulfillment of this <i>mizvah</i> on behalf of the entire family. Moreover, in this way, Sabbath atmosphere is introduced into the home. Insofar as <i>ba'alei teshuvah</i> are concerned, lighting of candles by unmarried girls is applauded by all. Rabbi Schneerson, however, advocates that even in observant families girls be introduced to the practice at approximately the age of three.
  Innovation, whether in law or custom, invariably poses questions of halakhic propriety. Kindling of Sabbath candles by unmarried girls is no exception. A number of these questions are briefly discussed by an adherent of Lubavitch, Rabbi Sholom Dov Ber Levine, in a pamphlet entitled <i>Nerot Shabbat Kodesh</i>. (The initial letters of this title, prominently high-lighted on the cover of the brochure, form the acronym <i>neshek</i> [ammunition], symbolizing the role ascribed to the Sabbath candles in the campaign for enhanced and expanded religious observance.) This innovation has been opposed by the Sephardic Chief Rabbi of Israel, Rabbi Ovadiah Yosef, whose views are expressed in a contribution to the Iyar 5735 issue of the Sephardic Torah journal, <i>Or Torah</i>, which also contains other contributions on this topic. A negative view is also voiced by Rabbi Meir Blumenfeld of Newark in the Shevat and Iyar 5735 issues of the same publication and in his commentary on Psalms, <i>Sha'ar ha-Melekh</i>, III, 191-195.1<i class="footnote">This innovation is also opposed by R. Benjamin Silber, <i>Oz Nidberu</i>, VI, nos. 67-68 and <i>hashmattot</i>, pp. 155-156; and ibid., VII, no. 3.</i> Unfortunately, these items, which, for the most part, decry the innovation, generally fail to present a clear formulation of the questions involved and betray a lack of analytic clarity. A positive view is expressed by Rabbi Moshe Havlin of Ashkelon in a contribution to the Heshvan 5736 issue of <i>Or Torah</i>. Quite apart from his conclusions, Rabbi Havlin's discussion is, to date, the most precise and accurate analytic treatment of the issues posed.
  The <i>mizvah</i> of Sabbath lights is a rabbinic enactment designed to serve a practical end. In the absence of illumination people might easily "stumble over wood or stone." Since fire may not be kindled on the Sabbath it was necessary to ordain that light be kindled before the onset of <i>Shabbat</i>. This rabbinic decree imposes a two-fold obligation: 1) a personal obligation devolving upon every Jew to honor the Sabbath through the lighting of Sabbath lights; 2) an obligation requiring lights to be kindled in every dwelling in order to prevent stumbling over objects of "wood or stone." The two-fold nature of this obligation is evidenced by the regulation recorded in Oraḥ Hayyim 263:7 pertaining to married men who are away from home over the Sabbath. A wife lighting candles at home discharges the personal obligation both for herself and for her husband. The husband, spending <i>Shabbat</i> with an innkeeper, is not obligated to light candles. If, however, he has a private room for eating and sleeping, the husband must himself light candles because he is deemed to have established an independent domicile even though his personal obligation has been discharged by his wife's kindling. In the event that the wife for some reason does <i>not</i> light candles at home, the husband, even though he does not have private accommodations, is obligated to light candles himself, or to participate in the innkeeper's kindling of Sabbath lights by sharing the expense of the purchase of candles.
  Insofar as the lighting of candles by girls is concerned, it is clear that the obligation with regard to the "home" is fulfilled by the mother's candles. The question is, then, whether the unmarried daughter may choose to fulfill her personal obligation through her own kindling, rather than vicariously discharging her obligation through her mother. The crucial question is not whether she may light the candles (since such kindling, if it does not constitute the fulfillment of a <i>mizvah</i>, is simply a discretionary act of no ritual significance) but whether or not she may pronounce the blessing. If the kindling of Sabbath lights by the daughter does not constitute the fulfillment of a <i>mizvah</i>, the blessing is a <i>brakhah le-vatalah</i>, an improper invocation of the divine name, and is prohibited.
  The locus of this question is to be found in a controversy betwen <i>Shulḥan Arukh</i> and Rema, Oraḥ Hayyim 263:8. The question there concerns a situation in which two or more householders or families share a single dining room as is commonly the case when, for example, married children visit parents for <i>Shabbat</i>. <i>Shulḥan Arukh</i> cites two opinions, one of which maintains that only one of the women should pronounce the blessing prior to lighting the Sabbath candles. According to this opinion, the second woman is precluded from pronouncing the blessing. The reasoning is that since lights have already been kindled by the first woman there is no longer danger of stumbling in the dark and the second kindling is redundant in nature. A second view maintains that both women may pronounce the blessing since the enhanced illumination adds to the enjoyment of the Sabbath and hence does constitute a fulfillment of the <i>mizvah</i>. <i>Shulḥan Arukh</i>, after recording both conflicting opinions, concludes that since there is doubt with regard to the propriety of both women pronouncing the blessing it is proper that only one of the women pronounce the blessing. Rema, however declares that it is our custom for both women to kindle the Sabbath lights and for both to recite the blessing. Common practice (at least among Ashkenazic Jews) is indeed for each woman to kindle the Sabbath candles and to pronounce the blessing.
  Several of the contributors to <i>Or Torah</i> argue that, in keeping with the view expressed by <i>Shulḥan Arukh</i>, although both mother and daughter may kindle Sabbath candles, they should not both recite the blessing. The situation of a mother and daughter both kindling is comparable to that of the "two householders" cited by <i>Shulḥan Arukh</i>. As these writers correctly note, this consideration is of particular significance to Sephardic Jews who, in the case of a dispute between <i>Shulḥan Arukh</i> and Rema, customarily follow the opinion of <i>Shulḥan Arukh</i>.
  Rabbi Levine and Rabbi Havlin both point out that under contemporary conditions the Sabbath candles are not usually the only source of light. Ordinarily, electric lights are turned on before <i>Shabbat</i> and are already lit when the Sabbath candles are kindled. It may well be argued that, since according to those authorities who maintain that the "second householder" may not recite the blessing because his candles are not necessary to prevent "stumbling over wood or stone," it follows that no blessing should be recited in the event that electric lamps are already lit when the Sabbath candles are kindled. Under such circumstances the candles do not significantly enhance the degree of illumination. It is, nevertheless, common practice, among Sephardic Jews as well, to pronounce the blessing even under such circumstances. A prominent Sephardic authority, <i>Kaf ha-Hayyim, Oraḥ Hayyim</i> 263:56, reports that among many Sephardic Jews it was the custom for each of the "two householders" to pronounce the blessing, an indication that in this instance normative practice is at variance with the opinion of <i>Shulḥan Arukh</i>. Accordingly, no objection can be raised against the kindling of candles by unmarried girls on these grounds.2<i class="footnote">It may also be noted that <i>Arukh ha-Shulḥan, Oraḥ Ḥayyim</i> 263:6, is of the opinion that all authorities are in agreement that when both kindle simultaneously the blessing may be recited by each since both contribute equally to the generation of illumination. According to this latter view, the dispute would be obviated if mother and daughter were to light candles simultaneously.</i>
  Moreover, the question does not arise if the daughter lights Sabbath candles in a different room from the mother,3<i class="footnote">Indeed, this is the method advocated by Rabbi Silber; see above, note 1.</i> especially if there is no other source of illumination in the room in which the daughter lights her candles. Rabbi Yosef's conclusions in this regard are most puzzling. Rabbi Yosef contends that even in such circumstances the daughter should not recite the blessing—he labels the situation an "unnecessary blessing." He compares the situation to the case of several people performing the pre-Passover search for leaven in a single house. All performing the search for leaven are required to be present together while the blessing is recited by one person on behalf of all. Those performing the search do not have the option of pronouncing the blessing individually. Similarly, argues Rabbi Yosef, even if the daughter lights candles in her own bedroom she should not pronounce the blessing herself. Rabbi Yosef fails, however, to note an obvious distinction. The search for leaven is a single <i>mizvah</i> incumbent upon the master of the house; others engaged in the search for leaven are simply his proxies and assist him in the fulfillment of his obligation. Since the cooperative efforts constitute the fulfillment of but a single <i>mizvah</i> only one blessing may be pronounced. The kindling of Sabbath candles, on the contrary, is an obligation incumbent upon every individual and, accordingly, it is logical to assume that each person fulfilling the <i>mizvah</i> personally may pronounce the blessing.4<i class="footnote">Cf., <i>Rav Pe‘alim</i>, II, <i>Oraḥ Ḥayyim</i>, no. 50.</i>
  Yet another complication arises from the fact that mother and daughter are not "two householders" but are members of the same family sharing a single domicile whose obligation is discharged through the kindling by a single member. The question is whether or not any member of the family may decline to fulfill his or her personal obligation through the kindling of another person and thereby obligate himself personally to kindle Sabbath lights. The usual rule is that no <i>mizvah</i> can be discharged contrary to a person's desire. Many authorities maintain that this is the case with regard to Sabbath lights as well. Accordingly, unmarried girls may renounce the option of discharging their obligation through the mother's kindling. They must then light candles themselves and pronounce the requisite blessing. In light of the militant advocacy of this practice on the part of Lubavitch, it is somewhat quixotic that the sole authority who explicitly states that different members of the household may <i>not</i> light Sabbath candles individually and pronounce the blessing is the founder of <i>Habad</i> or Lubavitch Hasidism, R. Shneur Zalman of Liadi. In his halakhic compendium, <i>Shulḥan Arukh ha-Rav, Kuntres Aḥaron, Oraḥ Hayyim</i> 263:5, he states that the obligation of kindling Sabbath lights parallels the obligation with regard to the Chanukah <i>menorah</i>. The latter is fundamentally an ordinance requiring the kindling of a single light for each household. The Sages, however, further stipulated that those who seek optimum fulfillment of the <i>mizvah</i> may light individual <i>menorot</i> in order to effect greater publicization of the miracle. <i>Shulḥan Arukh ha-Rav</i> argues that in the absence of that consideration the kindling of more than one <i>menorah</i> in each household would be devoid of ritual significance. Under such circumstances, it would follow that only the first person kindling the lights may pronounce the blessing. Since "publicization" does not apply to Sabbath candles, <i>Shulḥan Arukh ha-Rav</i> rules that this rabbinic ordinance calls only for the kindling of a single light and, accordingly, it is not proper for different members of the same household to recite the blessing. For this reason, Rabbi Levine recommends that, in the case of a minor girl, the daughter kindle Sabbath candles before her mother does so. Thus, at the time of the mother's kindling, the <i>mizvah</i> has not yet been fulfilled. The child's act serves to fulfill a <i>mizvah</i> and therefore constitutes an act of <i>ḥinnukh</i> or training. Since, however, the mother (and other members of the family) cannot discharge their obligation through the act of a minor, the mother may kindle the candles subsequently and pronounce the blessing without question. Quite evidently, this procedure does not, however, obviate the problem in cases where the daughter is more than twelve years of age. Responding to a similar query but employing a somewhat different line of reasoning, a Sephardic authority, <i>Rav Pe'alim</i>, II, Oraḥ Hayyim, no. 50, required other persons desiring to light Sabbath candles to do so in a different room5<i class="footnote">See also <i>Arukh ha-Shulḥan, Oraḥ Ḥayyim</i> 263:7.</i> and stipulated that this must be done before the mistress of the house kindles her candles.
  Despite the several divergent views cited, there is little question that insofar as normative <i>psak halakhah</i> is concerned, unmarried girls may readily be permitted to kindle Sabbath candles. At the same time it appears to many that there is no compelling reason for unmarried girls to kindle Sabbath candles if the mother does so.
  It has been argued that minor girls (below the age of twelve) be initiated into this practice for purposes of <i>ḥinnukh</i> or training. This, however, is not a compelling consideration. The normative obligation of <i>ḥinnukh</i> requires not that the father train the child in the performance of the <i>action</i> involved in the performance of a <i>mizvah</i> but that he cause the child to <i>fulfill</i> the <i>mizvah</i>. In the case of Sabbath candles the child, together with all other members of the family, fulfills the <i>mizvah</i> through the kindling of the mother and no further <i>ḥinnukh</i> is required.
  It is understandable that in the absence of a compelling reason many are reluctant to institute an innovative and hitherto uncommon practice. Tradition is itself a strong reason to retain unaltered the practices of previous generations. Nevertheless, no overriding halakhic objections to this practice have been advanced and some may wish to adopt the practice because they deem it to be of positive pedagogic value.
  Whether or not others emulate the example of Lubavitch in this matter, the campaign which they have mounted has certainly been of positive value. Information regarding the <i>mizvah</i> of Sabbath lights has received wide dissemination and the <i>mizvah</i> itself has become potent <i>neshek</i> in inspiring greater commitment to Torah observance.
  Paper Cups for Kiddush
  Modern technology has made available numerous time- and labor-saving devices. Among the oldest and most ubiquitous are inexpensive paper and plastic utensils which have achieved great popularity since their low cost allows them to be discarded after use. In the Elul 5734 issue of <i>Ha-Ma'or</i>, Rabbi Meir Ze'ev Goldberger addresses himself to the question of whether or not paper cups may be used for <i>kiddush</i> on <i>Shabbat</i> and <i>Yom Tov</i>.
  An earlier responsum dealing with this question is included by Rabbi Moses Feinstein in his <i>Iggerot Mosheh, Oraḥ Hayyim</i>, III, no. 39. Rabbi Feinstein is somewhat ambivalent in his answer. <i>Shulḥan Arukh</i> specifies that the <i>kiddush</i> cup must be unbroken and free of cracks. Furthermore, if the cup is attached to a pedestal, the pedestal must be intact as well. Rabbi Feinstein explains that a cracked pedestal disqualifies the utensil for use as a <i>kiddush</i> cup even though the portion serving as a vessel is unbroken because, since the <i>kiddush</i> cup is used in sanctification of the Sabbath, it must be <i>"na'eh,"</i> an object of esthetic appeal. Applying this concept to the question at hand, Rabbi Feinstein finds that a <i>kiddush</i> cup designed to be discarded immediately after use cannot be used for purposes of <i>kiddush</i> because it is not held in regard. Nevertheless, concludes Rabbi Feinstein, where no other cup is available, "perhaps leniency is possible." The argument in favor of use of paper cups for <i>kiddush</i>, although not explicitly formulated in <i>Iggerot Mosheh</i>, is that since there is no halakhic requirement that the <i>kiddush</i> cup be possessed of any minimum financial value, or that it be fashioned of any particular material, an attractive cup made of paper may satisfy the halakhic requirements. The fact that the cup is discarded immediately and not preserved for reuse may not be a sign of its intrinsic lack of "value" but rather of the affluence of a society which places a higher premium on convenience than upon preservation of material goods.
  Rabbi Goldberger cites a responsum of another contemporary scholar, Rabbi Ya'akov Lifschitz, <i>Mishnat Ya'akov</i>, I, no. 6, sec. 8, in which the author rules against the use of paper <i>kiddush</i> cups on completely different grounds. Rambam, <i>Hilkhot Kelim</i> 5:7, rules that a utensil fashioned from a horn which is ordinarily discarded after use cannot become ritually impure. According to Rabbi Lifschitz, Rambam's reasoning is that an object designed to be discarded does not merit halakhic designation as a "utensil" (<i>keli</i>). Since only "utensils" are subject to defilement, the horn described by Rambam requires no purification. Similarly, argues Rabbi Lifschitz, since Jewish law prescribes that the <i>kiddush</i> cup must be a utensil, a paper cup which is designed to be discarded immediately after use does not meet the halakhic specification of "utensil" and, therefore, may not be used for this purpose.
  Rabbi Goldberger refutes this contention by arguing that it is based upon a misunderstanding of Rambam's reasoning. Going back to the original source of Rambam's ruling, the <i>Mishnah, Kelim</i> 16:5, Rabbi Goldberger argues that an object designed to be discarded cannot become defiled, not because it fails to meet the conditions necessary for designation as a "utensil," but because of a consideration which is applicable only to the laws of defilement. An object designed for impermanent use, argues Rabbi Goldberger, is not deemed susceptible to defilement even though it qualifies as a "utensil." There are indeed other objects which are defined as "utensils" for other halakhic purposes, but are not subject to defilement, e.g., vessels made of stone. Accordingly, concludes Rabbi Goldberger, since paper cups satisfy the criteria of "utensils," they may be utilized for purposes of <i>kiddush</i>.6<i class="footnote">This is also the opinion of R. Yosef Eliyahu Henkin, <i>Am ha-Torah</i>, no. 10, p. 6; R. Eliezer Waldenberg, <i>Ẓiẓ Eli‘ezer</i>, XII, no. 23; and R. Menasheh Klein, <i>Mishneh Halakhot</i>, VII, no. 111. Cf., the negative opinion of R. Joel Teitelbaum, the late Satmar Rav, cited by R. Zevi Kohn, <i>Tevilat Kelim</i> (Jerusalem, 5728), p. 57, note 10.</i>
  Of course, in the performance of <i>mizvot</i> not all that is permissible is optimal. The Sages interpret Exodus 15:2 as an exhortation to perform <i>mizvot</i> in as beautiful and aesthetic a manner as possible.7<i class="footnote">See also R. Moshe Stern, <i>Teshuvot Be’er Mosheh</i>, III, no. 55, and R. Benjamin Silber, <i>Oz Nidberu</i>, VI, no. 48, and <i>hashmattot</i>, pp. 144-145.</i>
  Photosensitive Eyeglasses
  Photosensitive eyeglasses and sunglasses which darken when exposed to sunlight and lighten when removed from contact with the sun's rays have grown in popularity in recent years. The lenses used in these glasses contain particles which darken in the presence of ultraviolet rays causing the glass to assume either a gray or brown color. Such lenses are marketed by a number of manufacturers of optical lenses under various brand names. In the Heshvan 5738 issue of <i>Or Torah</i>, Rabbi Ovadiah Yosef, Israel's Sephardic Chief Rabbi, examines the question of whether or not such eyeglasses may be worn on <i>Shabbat</i> in view of the fact that in moving from a shaded area to a sunlit area while wearing such eyeglasses one automatically causes coloration of the lenses.
  Coloring, painting or dyeing constitutes one of the thirty-nine categories of "labor" which are forbidden on the Sabbath. However, Rambam, <i>Hilkhot Shabbat</i> 9:15, codifies the provision stating that the biblical prohibition against these activities is limited to engaging in a process which creates a permanent bond between the coloring or dyeing agent and the substance to which it is applied. Processes which lead only to transitory coloration are not biblically proscribed. Accordingly, since the coloring effect of the sun's rays dissipates when the wearer enters enclosed or shaded areas, exposing photosensitive lenses to the sun's rays does not constitute a biblical transgression.
  However, temporary coloration is forbidden by virtue of rabbinic ordinance. This prohibition is exemplified in the ruling of <i>Shulḥan Arukh, Oraḥ Hayyim</i> 302:25, which forbids the application of rouge or lipstick on <i>Shabbat</i>. The permissibility of wearing photosensitive glasses on <i>Shabbat</i> is contingent upon the question of whether or not wearing such lenses constitutes an infraction of this rabbinic ordinance.
  Rabbi Yosef rules that the wearing of photosensitive sunglasses is permissible without question. The definition and delineation of all categories of labor prohibited on <i>Shabbat</i> is directly related to utilization of similar processes in construction of the Tabernacle and its appurtenances in the wilderness. The coloring or dyeing associated with construction of the Tabernacle involved the use of pigments. Hence the coloring or painting which is forbidden on <i>Shabbat</i> is limited to coloration which results from applying one material substance to another, e.g., purple dye upon wool and the like. Coloration caused by exposure to the sun's rays is not the result of application of a material substance and hence is permissible, particularly, since, in any event, the resultant change in color is not permanent.
  The use of photosensitive sunglasses is also permitted by Rabbi Moses Feinstein in a somewhat cryptic responsum published in his <i>Iggerot Mosheh, Oraḥ Hayyim</i>, III, no. 45.
  Pampers
  Disposable paper diapers (commonly referred to by the popular brand name, Pampers) which in some areas have all but displaced the traditional cloth diaper have proved to be a boon to mothers who hitherto had been forced to choose between spending considerable time in the tedious task of diaper washing or subscribing to a diaper service. The relatively inexpensive paper substitute is discarded immediately after use. An added convenience is the strip of gummed tape, already affixed to one side of the diaper, which is simply pressed firmly to the corresponding side after the diaper is in place. This effectively eliminates the use of safety pins and the attendant danger of piercing either the baby or the diaperer's own finger. It is the use of this tape on <i>Shabbat</i> which presents a halakhic question.
  Sewing is one of the thirty-nine categories of labor forbidden on the Sabbath. The end result and the purpose for which sewing is undertaken is the fusion of two previously distinct components into a single entity. Other procedures designed to achieve the same effect, when produced by a process other than sewing, are also forbidden as a derivative (<i>toldah</i>) of sewing. Thus, for example, Rambam, <i>Hilkhot Shabbat</i> 10:11, rules that the pasting together of two or more pieces of paper or leather by means of glue is forbidden on <i>Shabbat</i> as a derivative of sewing.
  The applicability of this principle to the use of disposable diapers on the Sabbath is examined by Rabbi Menasheh Klein, <i>Rosh Yeshivah</i> of Yeshiva Bais Shearim, in the Iyar 5733 issue of the Yeshiva's publication, <i>Sha'arei Halakhot</i>. Rabbi Klein cites <i>Bet Yosef, Oraḥ Hayyim</i> 317, and Rema, <i>Oraḥ Hayyim 317:3</i>, who record two conflicting views with regard to whether or not the prohibition against sewing encompasses sewing of stitches which are not designed to be permanent in nature. Some authorities are of the opinion that the category of "sewing" includes only sewing of stitches designed to effect a permanent bond between the articles so joined; temporary stitches designed for subsequent removal do not create such a bond and hence do not fall under this prohibition. Other authorities are of the opinion that permanence is irrelevant and maintain that the act of stitching is forbidden under all circumstances. Since gluing or pasting is classified as an activity forbidden on <i>Shabbat</i> as a derivative of "sewing," it stands to reason that those authorities who view temporary stitching as permissible would also deem pasting for purposes of forming a temporary cohesion to be permissible. Rema rules in accordance with the lenient opinion but admonishes that such actions should not be performed in the presence of the untutored who are likely to be unaware of the distinction between permanent and temporary stitching. It would appear that the same restriction is also applicable with regard to pasting.
  However, <i>Shulḥan Arukh, Oraḥ Hayyim</i> 440:7, fails to make any distinction between permanent and temporary stitching, thereby implying that even the sewing of temporary stitches is forbidden on <i>Shabbat</i>. Rabbi Klein cites <i>Tehillah le-David</i> 440:6 who opines that this distinction applies only to the biblical prohibition, but that all forms of temporary sewing (and pasting) are rabbinically proscribed.
  Rabbi Klein also suggests a distinction between an act which by virtue of its nature is intrinsically temporary and an act which produces an effect which is permanent in terms of potential durability but is temporary only by virtue of intent. A truly temporary act of sewing (or pasting) he argues, is one which must necessarily become undone of its own accord. Pampers are removed not because the gummed tape becomes ineffective and cannot keep the diaper fastened over an extended period of time but because one desires to change the soiled diaper. The original fastening of the diaper, argues Rabbi Klein, may well be deemed "permanent" rather than temporary.
  Despite these considerations, Rabbi Klein recognizes that according to the opinion of a number of authorities the use of disposable diapers on the Sabbath is not objectionable. In his opinion, however, their use should nevertheless be discouraged because of the reasons indicated.
  Removal of a disposable diaper on <i>Shabbat</i> presents no halakhic problem. Since the diaper is not reusable, removal of the tape is preparatory to disposal of the diaper. Accordingly, since the effect is "destructive" in nature, the gummed strip may be removed in order to change the diaper.
  Automatic Banking Machines
  Many banks in Israel as well as in this country have installed automatic banking machines for the convenience of their customers. These machines, which are available for use twenty-four hours a day, accept deposits and also dispense cash. This makes it possible for a customer to perform banking chores at his convenience at any hour of the day without waiting for the services of a teller. The availability of these services on <i>Shabbat</i> presents a unique set of problems for a Jewish bank. The United Mizrachi Bank, desiring to make automatic banking machines available for the convenience of its customers, turned to the Chief Rabbi of Israel, Rabbi Shlomoh Goren with a series of questions. Rabbi Goren's response is published in the 5741 issue of <i>Shanah be-Shanah</i>. The questions presented are:
  1. Is it permitted to allow the machines to operate on <i>Shabbat</i> since they are likely to be utilized by non-observant Jewish clients?
  2. Is there any prohibition against permitting a machine owned by a Jew to perform acts of labor on <i>Shabbat</i>? A prohibition against allowing the machines to operate on <i>Shabbat</i> would prevent making such machines available even were they to be used only by non-Jews.
  3. Is it permissible for the bank to charge interest on cash dispensed as a loan by the machines for the use of the money on the Sabbath day? Were the money to be dispensed one day later the interest charged would be computed on the basis of a period beginning one day later. Conversely, in accepting a deposit in an interest-bearing account is it permitted to pay the depositor the additional interest accruing to him for the deposit on the Sabbath? Were the money deposited a day later the depositor would receive interest beginning on the later day.
  The problem presented in abetting non-observant Jews in engaging in forbidden financial transactions on the Sabbath is whether such action constitutes a violation of the biblical prohibition "You shall not place a stumbling block before the blind" (Leviticus 19:14). The paradigm discussed by the Gemara is the act of extending a cup of wine to a Nazarite. The Gemara, <i>Avodah Zarah</i> 6b, indicates that the biblical prohibition is operative only if the Nazarite and the wine are on opposite sides of a river. In such a situation it is impossible for the Nazarite to drink the wine without the assistance of the person placing the "stumbling block" before him. When both the Nazarite and the wine are on the same side of the river no biblical transgression is incurred in handing the wine to the Nazarite since he could readily have taken it himself. Rabbi Goren asserts that making banking machines available to non-observant Jews on the Sabbath is comparable to the situation in which both the Nazarite and the wine are on the same side of the river. Since the identical machines are provided by other banks, and presumably by non-Jewish banks as well, in allowing its machines to operate on Sabbath, the Jewish bank does not make possible a transgression which could not otherwise be committed. Nevertheless, <i>Tosafot, Shabbat</i> 3a, followed by other authorities including Magen Avraham, Oraḥ Hayyim 347:4, rule that, even when the transgression could have been performed without assistance, it is forbidden by virtue of rabbinic edict for a Jew actively to aid and abet a transgressor. Although there is disagreement among the authorities with regard to whether or not this rabbinic prohibition extends to rendering assistance to a non-Jew in violating Noachide prohibitions, <i>Shakh, Yoreh De'ah</i> 151:6, declares that all are in agreement that the prohibition includes rendering such assistance even to an apostate Jew.
  The second question, viz., whether or not a Jew is permitted to allow his utensils to be used for labor on <i>Shabbat</i>, is the subject of dispute in the Gemara, <i>Shabbat</i> 18a. The normative position, as recorded by Rambam, <i>Hilkhot Shabbat</i> 6:16, and subsequent authorities is that a Jew may permit a non-Jew to use the former's utensils for labor which a Jew is forbidden to perform on <i>Shabbat</i>. Rabbi Goren nevertheless points to a specific provision of Jewish law which prohibits a Jew to allow his possessions to be used for purposes of transgression. The Mishnah, <i>Shevi'it</i> 5:6, declares that during the sabbatical year farming implements which are used exclusively for forbidden agricultural tasks may not be sold to a person suspected of engaging in such proscribed activities. Similarly, an automatic banking machine should not be made available to Sabbath violators. However, here again, the prohibition is not specifically against permitting use of one's property for "labor," but is the selfsame prohibition discussed earlier which forbids one to place a "stumbling block" before the blind or to assist a Jew in transgressing.
  The third problem, viz., whether interest may be charged or credited for withdrawals or deposits on the Sabbath is not an actual one. The prevalent banking practice is not to debit or credit an account for transactions made by means of an automatic machine until the next business day. Thus the problem of forbidden interest charges or payments for the <i>Shabbat</i> day does not arise.
  This response, however, merely begs the question, not simply because it fails to address the hypothetical question concerning a bank which <i>does</i> credit and debit an account on the same day that the automatic banking machine is used for a transaction, but because the identical question arises even if the transaction is completed on a weekday. Banks customarily calculate interest on all deposits and loans on a per diem basis. In doing so they pay and charge interest for use of money on the Sabbath-day even though the actual deposit or loan is made on a weekday. Magen Avraham, Oraḥ Hayyim 306:7, explicitly forbids acceptance of interest or dividends paid expressly for use of funds on the Sabbath.
  The problem posed by a per diem interest rate is discussed by R. Moses Feinstein in a responsum included in the most recent volume of his <i>Iggerot Mosheh</i>. In <i>Iggerot Mosheh, Oraḥ Hayyim</i>, IV, no. 59, Rabbi Feinstein observes that interest is commonly calculated on the basis of a twenty-four hour period beginning and ending at midnight. Hence the interest calculated for any given Saturday necessarily includes interest for a number of hours on Saturday evening subsequent to the conclusion of the Sabbath. Interest under such circumstances is permitted since payment is not specifically for use of money on the Sabbath but includes payment for the use of money on a weekday as well (<i>be-havla'ah</i>).
  Rabbi Feinstein also permits acceptance of interest for the two-day <i>Yom Tov</i> period since, in terms of biblical law, <i>Yom Tov</i> restrictions are limited to only a single day. Two days are observed in the Diaspora because of the doubt which existed before the promulgation of a fixed calendar regarding the day on which <i>Yom Tov</i> actually occurred. Hence, Rabbi Feinstein rules that interest may be accepted for both days since, in actuality, only one day is <i>Yom Tov</i> and interest is accepted for a twenty-four hour period which includes a number of hours which are not <i>Yom Tov</i>. The two days of <i>Rosh ha-Shanah</i>, however, are deemed to be a single "long day" <i>(yoma arikhta)</i> and hence Rabbi Feinstein rules that benefit may not be derived from the interest paid for the day of the civil calendar which falls entirely within the two-day period of <i>Rosh ha-Shanah</i>. For the same reason interest may not be accepted for a similar one-day period when <i>Yom Tov</i> occurs on a Friday or on a Sunday since, under such circumstances, one entire twenty-four hour period contains no segment of a weekday. Rabbi Feinstein advises that the interest paid for such days be anonymously contributed to a charity so that no benefit of any nature be derived by the depositor.
  Rabbi Feinstein's responsum is addressed to a depositor concerned with accepting interest and for that reason does not address itself to the propriety of interest charges on loans calculated in this manner by a Jewish bank. This problem may be obviated by including a clause in the <i>hetter iska</i> agreement stipulating that payments be deemed to accrue on a weekly rather than a daily basis. This would serve to eliminate the problem save for loans which fall due in full during the week following <i>Rosh ha-Shanah</i> or during the week following a <i>Yom Tov</i> which occurs on Friday or on Sunday.
  Elective Surgery Prior to Shabbat
  The Tammuz 5738 issue of <i>Ha-Pardes</i> features a transcript of an address by Rabbi Menachem Mendel Schneerson, the Lubavitcher <i>Rebbe</i>, in which he advises that elective surgery should not be performed during the three days immediately prior to <i>Shabbat</i>, i.e., Wednesday, Thursday or Friday, if it is anticipated that the patient will be hospitalized over <i>Shabbat</i>. The following issue, dated Tishri 5739, contains a statement by the Union of Orthodox Rabbis of the United States and Canada announcing that its President, Rabbi Moses Feinstein, has similarly ruled that in matters involving no danger to life it is forbidden to schedule surgery on those days "in situations where it is possible to delay."
  This position is based upon a number of considerations:
  1) <i>Shulḥan Arukh, Oraḥ Hayyim</i> 248:2, rules that one must not embark upon a sea voyage during this three-day period because the voyage will disrupt "Sabbath delight" (<i>oneg Shabbat</i>). There is no objection to embarcation earlier in the week because subsequent to three days of travel one becomes acclimatized to the motion of the vessel. Rabbi Schneerson argues that routine hospital procedures, not to speak of the pain and discomfort of surgery and post-operative therapy, cause at least as much disruption and discomfort as does a sea voyage and thereby disturbs the Sabbath repose of both the patient and his family.
  2) According to many early authorities, sea voyages may not be commenced during this period because of the possibility that desecration of the Sabbath may subsequently become a necessity by virtue of danger to life which may arise. This consideration is germane even if the vessel is manned by non-Jews since a Jew may not normally permit a non-Jew to perform actions on <i>Shabbat</i> on his behalf which the Jew may not himself perform. Concern with regard to creating conditions of danger requiring subsequent suspension of <i>Shabbat</i> restrictions is mandated during the three days preceding <i>Shabbat</i>, but not earlier. This consideration is also cited by <i>Shulḥan Arukh</i>. As explained by <i>Ba'al ha-Ma'or, Shabbat</i> 19a, this prohibition is rooted in the consideration that a person undertaking such a journey appears to the onlooker as being unconcerned with the observance of <i>Shabbat;</i> such lack of concern is not apparent to the on-looker when the journey is undertaken during the early part of the week. This concern applies to surgery performed during this three-day period since post-operative care frequently entails acts ordinarily forbidden on <i>Shabbat</i>.
  3) In the course of normal post-surgical care, many procedures are routinely carried out which have no bearing upon alleviation of danger to the patient. Patients frequently find themselves unable to insist that such procedures be postponed until after <i>Shabbat</i>.
  In a footnote appended to his statement, Rabbi Schneerson takes cognizance of the ruling of <i>Shulḥan Arukh, Oraḥ Hayyim</i> 248:1, to the effect that voyages for purposes of fulfilling a <i>mizvah</i> may be commenced even on Friday. According to Rabbenu Tam, cited by Rema, Oraḥ Hayyim 249:4, all voyages other than purely pleasure trips are deemed to be undertaken "for purposes of a <i>mizvah</i>," and certainly preservation of health would be considered a <i>mizvah</i>. <i>Shulḥan Arukh</i> adds, however, than when such a permitted voyage begins within the three-day period it must nevertheless be stipulated in advance with the captain of the vessel that travel will be interrupted for the duration of the Sabbath. Rabbi Schneerson, citing <i>Magen Avraham</i> 248:1, argues that in the absence of such stipulation or in the event that the captain refuses to accept such a stipulation, the trip may not be undertaken. By the very nature of the situation "stipulation," is, of course, impossible with regard to medical treatment on <i>Shabbat</i>. It should be noted, however, that many authorities, among them <i>Mishnah Berurah</i> 248:3, indicate that while such stipulation is to be preferred its absence does not prohibit a Jew from undertaking a voyage "for purposes of a <i>mizvah</i>." Rabbi Schneerson, however, maintains that even according to these authorities such stipulation is not mandatory only in cases in which an opportunity to fulfill the <i>mizvah</i> presents itself for the first time during the three-day period, but did not exist earlier. When, however, the opportunity existed earlier the requirement concerning stipulation cannot be waived. Writing in the same issue of <i>Ha-Pardes</i>, Rabbi Yisrael Piekarski cites authorities who rule that permission to undertake a voyage for fulfillment of a <i>mizvah</i> during this three-day period is limited to situations in which the <i>mizvah</i> cannot be fulfilled at a later date.
  Rabbi Gedalia Felder, writing in the Heshvan 5739 issue of the same journal, cites an example of such an elective procedure which is the source of some controversy. A child dare not be circumcised so long as he is afflicted with any malady, but must be circumcised without delay as soon as he is medically and halakhically deemed to be out of danger. Jewish law provides that circumcision delayed beyond the eighth day may not be performed on <i>Shabbat</i>. But may a child deemed to be fully cured on Thursday be circumcised on that day in light of the fact that the third day, considered to be a day of pain as well as danger for the person circumcised, will fall on the Sabbath and hence it may be necessary to violate <i>Shabbat</i> restrictions on his behalf? <i>Taz, Yoreh De'ah</i> 262:3, cites the opinion of <i>Tashbaz</i>, I, no. 21, and rules that circumcision on Thursday is forbidden under such circumstances; <i>Shakh, Yoreh De'ah</i> 266:18 and <i>Nekudat ha-Kesef</i> 262, disagrees and permits the procedure even on a Thursday. However, even <i>Shakh's</i> permissive ruling is based upon the presence of an immediate, compelling <i>mizvah;</i> he would not have permitted circumcision if not for the halakhic requirement of avoiding delay.
  Of interest is the position of Magen Avraham, Oraḥ Hayyim 331:9. <i>Magen Avraham</i> permits a delayed circumcision to be performed on Thursday "in our day" since under contemporary conditions it is extremely unlikely that violation of <i>Shabbat</i> regulations will be necessary. <i>Magen Avraham</i> appears to be unconcerned with regard to the pain which will ensue on <i>Shabbat</i>.
  Rabbi Felder assumes that the circumcision of a proselyte on Thursday is forbidden even according to <i>Shakh</i> because of the absence of an immediately compelling <i>mizvah</i> and this, indeed, is the opinion of <i>She'ilat Ya'avez</i>, II, no. 95. However, <i>Hakham Ẓevi</i>, addenda, no. 14, permits even the circumcision of a convert on Thursday. The implication of <i>Hakham Ẓevi</i>'s position is that such procedures are permitted during the three-day period prior to <i>Shabbat</i> for the sake of any <i>mizvah</i> including, of course, treatment of the sick and preservation of health.
  Rabbi Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, XII, no. 43, also discusses the propriety of undertaking such procedures during the three-day period prior to <i>Shabbat</i> but limits his discussion to the question of surgical procedures for patients who are not presently in danger but whose lives will become endangered at some future time if the operation is not performed. Procedures that are entirely elective are not specifically discussed by Rabbi Waldenberg. Rabbi Waldenberg not only permits the procedures under discussion but urges that they not be delayed both because of possible unforseen dangers to the patient and because of possible need of the hospital bed for other patients. Rabbi Waldenberg argues that the majority of latter-day halakhic authorities have declined to rule according to the opinion of <i>Tashbaz</i> and that most authorities including <i>Shulḥan Aruk ha-Rav</i> 248:1, <i>Hayyei Adam, Hilkhot Shabbat</i> 4:1, and <i>Mishnah Berurah</i> 248:33 rule that the "stipulation" discussed earlier is preferable but not mandatory. Although he does not state so explicitly, Rabbi Waldenberg implies that if no element of danger at all is present the opinion of <i>Tashbaz</i> should be heeded since in the past his opinion was followed in many locales and delayed circumcisions were not performed on a Thursday.
  The argument advanced by Rabbi Schneerson serves to establish that elective surgery which can be planned in advance should be scheduled during the first three days of the week and even postponed in order to schedule surgery for a date early in the following week only "when it is possible to delay," as is carefully stated in Rabbi Feinstein's statement. However, this reasoning does not apply to a situation in which the surgeon regarded as the most competent available or in whom the patient has the greatest confidence is unable or unwilling to operate early in the week. The argument certainly does not apply to a situation in which delay may cause danger to the patient.
  Carrying Nitroglycerine on Shabbat
  Cardiac patients are often advised by their physicians to carry a supply of nitroglycerine capsules with them at all times. Patients are advised to ingest this medicine, which serves as a vasodilator, at the first sign of chest pain symptomatic of angina pectoris, in order to prevent heart problems of a more serious nature. Observant patients frequently ask whether they may carry this medication with them while going to, and returning from, the Synagogue or when taking a Sabbath stroll. Since the heart condition for which this medication is prescribed is life-threatening in nature, there is no question that, if necessary, Sabbath restrictions may be suspended for treatment of the medical problem. The question of carrying nitroglycerine requires careful investigation only because violation of Sabbath restrictions is not really necessary in order to safeguard the health of the patient: The patient has the option of remaining at home without compromising his health. The general rule is that Sabbath prohibitions may be suspended in cases of <i>pikuaḥ nefesh</i> only if the life-threatening danger cannot be eliminated in another manner.
  A similar question was raised early in the century with regard to carrying identity cards on <i>Shabbat</i>. Carrying identity papers upon one's person at all times was mandated by government decree in some countries, particularly in time of war. Failure to comply with this directive constituted an offense punishable by imprisonment. R. Samuel Engel, author of <i>Teshuvot Maharash Engel</i>, was asked whether it was permissible for Jews to carry these documents on the Sabbath or whether they must restrict themselves to their own homes during the Sabbath in order to avoid either transgression of Sabbath Laws or violation of civil law. <i>Teshuvot Maharash Engel</i>, III, no. 43, permits these documents to be carried on <i>Shabbat</i>, but only in an unusual manner, e.g., under a hat rather than in a pocket. R. Engel further stipulates that this mode of carrying may be utilized only if it is necessary to do so for purposes of fulfilling a <i>mizvah</i> such as communal prayer but may not be utilized in order to leave the house for purposes of a stroll or the like. He argues that "unusual" forms of carrying are forbidden by reason of rabbinic decree rather than by virtue of biblical prohibition. However, he admonishes that even this form of carrying is forbidden in an area which constitutes a public domain, according to the biblical definition of the term, even if failure to carry would prevent performance of a <i>mizvah</i>. According to this authority, carrying identity papers on <i>Shabbat</i> is permissible only if three conditions are satisfied: 1) the area in which carrying is to take place does not possess the criteria of a "public domain" in the biblical sense of the term; 2) the act of carrying is performed in an unusual manner; 3) the purpose of such carrying is the fulfillment of a <i>mizvah</i>. Thus <i>Maharash Engel's</i> permissive ruling does not apply to carrying in order to be able to go for a <i>Shabbat</i> stroll or to carrying in the streets of a major metropolis which, according to all authorities, constitutes a public thoroughfare. Other authorities dispute the permissiveness of even this limited ruling of <i>Maharash Engel</i>.8<i class="footnote">See R. Zevi Kinstlicher, <i>Teshuvot Be’er Ẓevi</i>, no. 10.</i>
  <i>Maharash Engel</i> is cited by Rabbi Yekutiel Yehudah Greenwald, <i>Kol Bo al Aveilut</i>, II, no. 1, sec. 6, as a precedent for permitting a diabetic to carry sugar cubes on <i>Shabbat</i> for use in case of insulin shock. Rabbi Greenwald stipulates, however, that the sugar be sewn into the garment before <i>Shabbat</i>. Rabbi Eliezer Waldenberg, in a sharply-worded dissent which appears in the 5737 issue of <i>Torah she-be-al Peh</i>,9<i class="footnote">Subsequently included in <i>Ẓiẓ Eli‘ezer</i>, XIII, no. 34.</i> argues that the issue to which R. Engel addresses himself does not constitute a paradigm for carrying medicine on <i>Shabbat</i>. Rabbi Waldenberg demonstrates that a careful reading of the responsum in <i>Teshuvot Maharash Engel</i> shows that R. Engel permits the carrying of identity papers under the conditions indicated only because such carrying is in the category of a <i>melakhah she-einah zrikhah le-gufah</i>, i.e., the act of carrying serves no intrinsic need, but serves only to obviate an extrinsic contingency, in this case, possible arrest and imprisonment. Insofar as Sabbath restrictions are concerned, the biblical prohibition against any of the forbidden categories of labor applies only when the intended benefit is derived directly from the forbidden act itself, but not when the purpose is essentially extraneous to the act which is forbidden. However, in the case of sugar cubes or nitroglycerine capsules, the benefit which is derived from the act of carrying is a direct one.
  Rabbi Waldenberg peremptorily dismisses Rabbi Greenwald's suggestion that a sick person sew objects needed for health reasons into the lining of a garment before <i>Shabbat</i>. Carrying in this manner is forbidden by rabbinic decree as is evident from the ruling recorded in Oraḥ Hayyim 301:33. A patient having the option of remaining at home would thus not be permitted to carry in this manner. Rabbi Waldenberg adduces further evidence in showing that a person must remain at home rather than carry medication on the Sabbath. The Sages did permit the wearing of an amulet of demonstrated efficacy, a fact which is cited by Rabbi Greenwald in support of his leniency with regard to carrying sugar. Rabbi Waldenberg argues that this citation is not germane: Such amulets were permitted to be worn because they were deemed "adornments" but were not permitted to be carried by hand. According to Rabbi Waldenberg, carrying sugar or medicine would thus not be permitted even if the only alternative for the patient would be to remain at home during the course of the entire Sabbath day.
  However, a recently published compendium dealing with questions of medical Halakhah, <i>Lev Avraham</i> (Jerusalem, 5737), authored by Dr. Abraham Sofer Abraham, cites a number of conflicting views. <i>Lev Avraham</i> 6:83 cites Rabbi Waldenberg's negative opinion (in fact, Rabbi Waldenberg's contribution to <i>Torah she-be-'al Peh</i> is in the form of a responsum addressed to Dr. Abraham) as well as the permissive view of Rabbi Joshua Neuwirth, author of the popular <i>Shmirat Shabbat ke-Hilkhatah</i> together with a caveat of Rabbi Shlomoh Zalman Auerbach.
  Although Dr. Abraham's comments are cryptic it would seem that, for him, the most cogent ground for permitting a cardiac patient to carry nitroglycerine is that denying him social intercourse on <i>Shabbat</i> is itself a form of pain. <i>Tosafot, Shabbat</i> 50b, opines that isolating oneself from people because of embarrassment is a form of pain and that a person in such a state has the status of a sick person suffering from a nonhazardous malady.10<i class="footnote">See <i>She‘arim ha-Meẓuyanim be-Halakhah</i> 80:81.</i> Sabbath restrictions which are rabbinic in nature are suspended for a person suffering from a nonhazardous sickness. Therefore, runs the argument, carrying in an unusual manner, which involves a rabbinic rather than a biblical transgression, is permissible in order to obviate the discomfort of isolation over the entire Sabbath.
  Rabbi Neuwirth is quoted as permitting the carrying of nitroglycerine in an unusual manner, but not for the reason advanced by Dr. Abraham. According to Rabbi Neuwirth, medication may be carried in this manner solely for purposes of fulfilling a <i>mizvah</i>.
  Rabbi Shlomoh Zalman Auerbach is quoted as advising the patient carrying medicine in this manner not to come to a stop in the course of walking through a thoroughfare, but to carry directly from one private domain to another without stopping in order to minimize the severity of the restriction which must be suspended for reasons of health. If the patient does come to a stop in the street, Rabbi Auerbach advises that, if possible, the medication should be placed on a ledge higher than ten handbreadths above the ground and then removed by the patient before he continues on his way. Rabbi Auerbach reasons that since, in terms of Halakhah, there exists no "domain" above the height of ten handbreadths, the object is not deemed to have been removed from a "public domain" and the infraction is thus minimized insofar as possible.
  Caffeine Suppositories on Fast Days
  An interesting item dealing with alleviation of certain types of headache associated with fasting appears in the February 1977 issue of the <i>New York State Journal of Medicine</i>. The authors, Dr. Morris Shorofsky and Rabbi Norman Lamm, cite medical studies which indicate that a significant number of both heavy and moderate caffeine users experience unpleasant symptoms when caffeine is withdrawn. The most significant symptom is the headache produced by sudden withdrawal of caffeine. Some individuals may also experience nausea, vomiting, mental depression, drowsiness, irritability, and lethargy. The onset of these symptoms occurs approximately twelve to sixteen hours after the last dose of caffeine has been ingested. Subjects commonly reported experiencing lethargy in the morning and headaches beginning early in the afternoon and reaching a peak three to six hours later.
  These unpleasant withdrawal symptoms can be avoided in various different ways. One researcher has reported that for some persons headaches can be prevented by a single dose of 150 milligrams of caffeine administered the previous evening. An ordinary cup of coffee contains 100 milligrams of caffeine. Another effective method is to undergo a weaning period prior to the fast. Over a period of one week prior to the fast, coffee consumption should be reduced gradually so that by one or two days prior to the fast no coffee is consumed. A third method involves the use of a suppository containing 150 milligrams of caffeine (300 milligrams of citrated caffeine). The suppository should be used on the morning of the fast.
  The halakhic questions associated with the use of suppositories have been discussed by Rabbi Ya'akov Breisch, <i>Helkat Ya'akov</i>, II, no. 83. It has been established by <i>Teshuvot Maharsham</i>, I, no. 123, and <i>Teshuvot Aḥi'ezer</i>, III, no. 61 that even use of a suppository containing nutrients does not constitute a breach of the fast. Thus there is no question concerning the permissibility of using such suppositories on any of the communal fasts, including the Ninth of Av. However, use of suppositories on <i>Yom Kippur</i> poses a problem of an entirely different nature. Use of medicaments on <i>Shabbat</i> for illnesses which are not serious is forbidden by virtue of rabbinic decree. The consideration underlying this edict is the fear that biblical prohibitions may be transgressed in preparing the medicine. This rabbinic edict prohibits the use of medication on <i>Yom Kippur</i> as well as on the Sabbath. The prohibition does not, of course, apply in situations in which the illness may pose a danger to the patient. Moreover, the prohibition against taking medication does not extend to cases of severe discomfort affecting the "entire body" (i.e., to illnesses in which the person experiences such discomfort that he takes to bed or is incapacitated). Accordingly, rules Rabbi Breisch, caffeine suppositories may be utilized on <i>Yom Kippur</i> only if the headache is extremely severe. Oraḥ Hayyim 328:49 stipulates that when suppositories are used on <i>Yom Kippur</i> they must be inserted gently and by means of a <i>shinuy</i> (i.e., in an unusual manner such as by holding the suppository between two fingers rather than between the thumb and the forefinger).
  
  Chapter II Blessings and Rituals
  
  <i>From [the manner of] a person's [recitation of] blessings it can be recognized whether or not he is a scholar</i>.
  BERAKHOT 50a
  <i>"Mizvot</i> were given solely in order to purify mankind," declares the Midrash (<i>Bereshit Rabbah</i> 44:1; <i>Va-Yikra Rabbah</i> 13:3). Fulfillment of a divine commandment is certainly not to be construed as a boon to God. As so eloquently expressed by the Sages, "What difference is it to God whether one performs the ritual of slaughter upon the throat or upon the nape of the neck?" The midrashic metaphor is chosen with precision. The term "<i>le-zaref,"</i> meaning "to purify," is the Hebrew term employed to describe the refining or "purification" of precious metals. Man's personality combines a curious mixture of the noble and the base, the spiritual and the animal, the precious and the dross. Precious metals were not created in a pure state. In nature they exist only in tandem with base substances. The precious metal is obtained in a pure state only as the end product of the process of smelting and refining. "The word of God is pure" (Psalms 18:31) and acts as a purging and purifying agent. Commandments and rituals are designed to refine human character, to purge man of base traits and to allow human spirituality to shine forth.
  This purpose is, at times, achieved by means of the intrinsic nature of the <i>mizvah</i> and, at times, simply by virtue of the discipline imposed by the observance of the <i>mizvah</i>, i.e., in fulfilling the divine command man must bridle his own desires and submit to the will of God. To be sure, mere perfunctory performance of <i>mizvot</i> is not likely to effect a moral or spiritual transformation in human nature. In order to achieve the requisite effect, the <i>mizvah</i> must be accompanied by reflection and introspective awareness of the deficiencies to be remedied. Blessings are designed to serve as one step in this process.
  The blessing pronounced prior to performance of a <i>mizvah</i> is an expression of gratitude, an acknowledgment that in being bidden to perform a <i>mizvah</i> the Jew has been granted a rare privilege. God has indeed "sanctified us <i>through</i> His commandments" (<i>be-mizvotav</i>), for it is fulfillment of the commandments that enables man to achieve a state of sanctity.
  The various blessings are not at all blessings in the conventional sense, i.e., prayers for, or invocations of, bounty. Understood in that sense, a blessing bestowed upon God by man is entirely devoid of rational meaning. God, as the very essence of perfection, has no lack or deficiency. God, then, suffers from no deprivation which man might seek to remedy. As an absolute Unity, eternal and unchanging, God could in no way be effected by man's blessing. Unaffected by accident, His essence remains constant both prior to the blessing and subsequent thereto. What, then, does man seek to accomplish in pronouncing the blessing?
  R. Chaim of Volozhin, <i>Nefesh ha-Hayyim, sha'ar</i> 2, chapter 4, dispels any possible misconception by explaining that the phrase <i>"barukh atah ha-Shem,"</i> which appears in the formula of the blessing, is neither a prayer nor a pious wish for the future, but a simple declaration of fact. The phrase <i>"barukh atah ha-Shem"</i> is properly rendered in translation as "blessed <i>are</i> You" rather than as "blessed <i>be</i> You." God is described as "blessed" simply in the sense that He is the source of all blessing. God, as King of the universe, causes all manner of blessing to be channeled toward man. Man is called upon to acknowledge this fact and to proclaim God as the source of all blessing whenever he derives tangible benefit from God's creation. The benefit derived from performance of a <i>mizvah</i> is no less real than the benefit derived from food and drink and demands identical acknowledgment.
  No less significantly, the blessing, when pronounced with <i>kavanah</i> and concentration, is itself performative and self-fulfilling. It serves to prepare man to receive the sanctity conveyed through fulfillment of the <i>mizvah</i>. By attuning him to the nature and purpose of the <i>mizvah</i> to be performed, the blessing serves to make man receptive to the curative power of the <i>mizvah</i> as a vehicle for achieving sanctity and holiness.
  Haftorah from a Braille Text
  It is now customary in most synagogues to accord a Bar Mitzvah the honor of reading the <i>haftorah</i> on that auspicious occasion. The Bar Mitzvah reads the prophetic portion either from a printed text or, in some synagogues, from a parchment scroll. Frequently, the Bar Mitzvah also chooses himself to read <i>maftir</i>, the final verses of the weekly Torah reading, rather than have the Torah reader chant them on his behalf.
  A blind person cannot, of course, read in the usual sense of the term. A blind Bar Mitzvah boy, however, may well be able to commit his <i>haftorah</i> to memory or to read it from a Braille text. Whether or not a blind Bar Mitzvah boy, or for that matter, any other blind person, may read the <i>haftorah</i> in this manner is the subject of a responsum published in booklet form by Dayan Abraham Rapoport. This booklet, <i>Be-Inyan Kri'at ha-Haftorah be-'al Peh</i>, was published in 1961 as the eighth in a series of publications of the London <i>Bet Din</i>. A shorter treatment of the same topic by Rabbi Nachum L. Rabinovitch, principal of Jews' College in London, appears in the Tishri 5738 issue of <i>Ha-Darom</i>.
  There is a general prohibition against the reading of even a single word of the Written Law from memory (<i>Gittin</i> 60b; Rambam, <i>Hilkhot Tefillah</i> 12:8; <i>Shulḥan Arukh, Oraḥ Hayyim</i> 53:14; and <i>Yoreh De'ah</i> 139:3). The Written Law may be read or studied only from a written text. Even though Magen Avraham, Oraḥ Hayyim 49:1, indicates that this restriction is relaxed in the case of a blind person who would otherwise be prevented from studying Torah, the public reading of the Torah on prescribed occasions requires that the appropriate portion be read from a Torah scroll and not be recited from memory. The Torah scroll must be written in the prescribed manner and, hence, a Braille text may not be used for this purpose. Nevertheless, Rema, Oraḥ Hayyim 139:3, rules that a blind man may be called to the reading of the Torah since it is our custom that the person called to the reading of the Torah does not read from the Torah scroll itself, but rather the portion is read on his behalf by a reader. A blind person may, therefore, pronounce the blessing and listen attentively as the Torah portion is read on his behalf.
  It follows, therefore, that a blind Bar Mitzvah boy called to <i>maftir</i> may not read the final sentences of the Torah reading from the Torah scroll. The question requiring clarification is whether he may recite the prophetic selection from memory or from a Braille text.
  It should be noted that for some authorities the <i>haftorah</i> must be read from a scroll of the Prophets, just as the Torah portion is read from a Torah scroll. Both <i>Magen Avraham</i> 284:1 and <i>Taz</i> 284:2 cite the opinion of the <i>Levush</i> to the effect that a parchment scroll containing the entire prophetic work from which the <i>haftorah</i> is selected must be used for this purpose. Although <i>Magen Avraham</i> and <i>Taz</i> disagree with the position of the <i>Levush</i>, the latter's opinion is vigorously affirmed by <i>Arukh ha-Shulḥan, Oraḥ Hayyim</i> 284:2-6. <i>Hayyei Adam</i>, however, asserts that, even according to <i>Levush</i>, a single scroll containing only the <i>haftorah</i> selections is sufficient. It was also the practice of the Gaon of Vilna to use a parchment scroll for the reading of the <i>haftorah</i>. <i>Mishnah Berurah</i> 284:1 states that, optimally, parchment scrolls on which the prophetic books are written in a manner similar to a scroll of the Torah should be used for the reading of the <i>haftorah</i> and praises those communities which follow this practice. In <i>Sha'ar ha-Ẓiyun</i> 284:4, the same author indicates that this practice has fallen into disuse in some communities because of the relatively high cost of acquiring a complete set of scrolls of the Prophets. He concludes with the wry comment that "in our day," when huge outlays of money are made for various adornments of the synagogue "which are not so very necessary," funds should certainly be set aside for acquiring scrolls of the Prophets.
  Of course, according to the authorities who maintain that the <i>haftorah</i> must be read from a scroll of the Prophets, it may not be recited from memory or from a Braille text. The Bar Mitzvah may, however, pronounce the blessings and have the Torah reader read the prophetic portion on his behalf. The question of whether a blind person may read the <i>haftorah</i> must, however, be analyzed according to the opinions of those who maintain that a parchment scroll is not required for this purpose—particularly since most synagogues, at present, do not use scrolls of the Prophets.
  Both Rabbi Rabinovitch and Dayan Rapoport show that the resolution of this question is contingent upon an analysis of a ruling of the Gemara, <i>Gittin</i> 60a. The Gemara asserts that, in transcribing any of the prophetic works, any single book of the Prophets must be written in its entirety, i.e., the writing of a partial book is forbidden. In this context the Gemara refers to a <i>Sefer Aftarta</i>, a book of <i>haftorot</i>, written on parchment in the manner of a Torah scroll, but containing only the prophetic selections read on the Sabbath to the exclusion of the remainder of the text of the books of the Prophets. Rabbah and Rav Yosef forbade not only the writing, but also the use, of such scrolls on the Sabbath. The Gemara, however, concludes that it is permissible to use such scrolls, explaining that since not every community can afford a set of complete scrolls, the requirement that only complete books be written is suspended. Rabbinic hermeneutics found sanction for this practice in Psalms 119:126 which was interpreted by the Sages as meaning, "At a time when it is necessary to work for the Lord, make void Thy law." The Sages understood this verse as granting dispensation to abrogate the prohibition against transcribing incomplete books of the Bible.
  The readily apparent analysis of this discussion is that the only requirements which are suspended are the requirements that a prophetic book be committed to writing only in its entirety and that public reading of the <i>haftorah</i> be only from a complete scroll. If these are the only requirements which are suspended, it follows that the prohibition against reading or studying the Written Law other than from a written text remains in effect. However, another interpretation is also possible: Only complete scrolls are endowed with the sanctity of scrolls of the Written Law. Thus selections from prophetic works, even if written in the appropriate manner on parchment, do not enjoy this sanctity. Accordingly, reading from a scroll composed of such selections is tantamount to recitation from memory. If the latter analysis is correct, then, in permitting the use of the <i>Sefer Aftarta</i>, the Sages, in effect, permitted what is tantamount to the study or recitation of the Written Law from memory.
  Some evidence substantiating the latter analysis may be derived from the fact that the Gemara draws a parallel between use of the <i>Sefer Aftarta</i> and the fact that other Amoraim made use of written compilations of sections of the Oral Law. It was originally forbidden to commit the Oral Law to writing. This prohibition was later suspended because of the difficulties involved in preserving the tradition orally. If, in permitting use of the <i>Sefer Aftarta</i>, it is the prohibition against studying the Written Law other than from a properly written scroll which is suspended, the parallelism is precise.
  The latter analysis is explicitly formulated by Ritva while, argues Dayan Rapoport, Me'iri's explanation of this discussion tends toward the former. Rabbi Rabinovitch endeavors to demonstrate that each of these divergent analyses is espoused by a different Tosafist as recorded in <i>Tosafot, Temurah</i> 14b. He further cites a responsum authored by Rambam, and cited by <i>Bet Yosef, Oraḥ Hayyim</i> 143, in which Rambam permits oral recitation not only of prophetic selections but of the Pentateuch as well.
  Both authors further maintain that <i>Levush</i>, who insists upon written parchment scrolls for the reading of the <i>haftorah</i>, understands <i>Gittin</i> 60a as permitting only the use of an incomplete scroll, but not oral recitation of the <i>haftorah</i>. Use of a printed paper text, in contradistinction to a hand-written parchment scroll, is the equivalent of oral recitation and hence, according to <i>Levush</i>, is prohibited. Those who disagree with the opinion of <i>Levush</i> understand use of the <i>Sefer Aftarta</i> to be tantamount to oral recitation and hence permit use of a printed text as well.
  Accordingly, both Dayan and Rapoport and Rabbi Rabinovitch permit a blind child to read the <i>haftorah</i> from memory or from a Braille text in synagogues which do not follow the practice of reading the <i>haftorah</i> from a parchment scroll. Dayan Rapoport prefers that the reader repeat the <i>haftorah</i> prior to the recitation of the final blessings by the Bar Mitzvah, or that he read it before the Bar Mitzvah does so subsequent to the pronouncement of the blessing preceding the <i>haftorah</i>.
  Dayan Rapoport's concern is based upon the opinion of <i>Tosafot, Temurah</i> 14b, to the effect that the prohibition against the study or reading of the Written Law from memory applies only to situations in which such reading is for purposes of enabling others to discharge their ritual obligations. Since the blind Bar Mitzvah boy is in the position of reading from memory not only on his own behalf but on behalf of the entire congregation as well, Dayan Rapoport prefers that the reader repeat the <i>haftorah</i> on behalf of the congregation. This consideration does not, however, appear to be a compelling one. Indeed, it is questionable whether the members of the congregation can at all discharge their obligation simply by listening to the <i>haftorah</i> as it is read from a printed text. <i>Hayyei Adam</i> 31:40 implies, and <i>Teshuvot Hatam Sofer, Oraḥ Hayyim</i>, no. 68, states explicitly, that members of the congregation cannot discharge their responsibility simply by listening to the reading of the <i>haftorah</i> without themselves reciting the <i>haftorah</i> unless it is read from a parchment scroll. Moreover, on the basis of the sources cited, reading from a printed text is in any event tantamount to reading without any text at all but, nevertheless, is permissible in the case of the <i>haftorah</i> because of the reason cited in <i>Gittin</i> 60a, "At a time when it is necessary to work for the Lord, make void Thy law."
  Cantorial Repetition
  The historical functions of the cantor include leading the congregation in prayer and (particularly in olden times) recitation of the prayers on behalf of unlettered persons unable to do so themselves. Such persons may discharge their obligation by listening attentively to the cantor's rendition. As a representative of the congregation beseeching God through prayer, the cantor was expected to be a person of piety and erudition. Jewish law specifies that in the appointment of a cantor a person blessed with a pleasing and melodious voice is to be sought in order that the congregation be inspired to proper concentration upon the service. Piety and scholarship are, however, of more fundamental importance. Thus <i>Shulḥan Arukh, Oraḥ Hayyim</i> 53:5, rules that when no person can be found who is endowed with all cantorial desiderata other considerations should be overlooked in the quest for a person of learning and wisdom.
  With the passage of time it became common practice for cantors to embellish the prayers with musical renditions designed to exhibit musical accomplishment. These exhibitions of cantorial vanity, when designed to impress the congregation or to provide esthetic gratification rather than to arouse spiritual fervor, were decried by so early an authority as R. Solomon ben Adret in the 13th century as recorded in <i>Bet Yosef</i> and <i>Shulḥan Arukh, Oraḥ Hayyim</i> 53:11. Subsequently, the eighteenth-century authority, R. Alexander Schorr, <i>Bekhor Shor, Ta'anit</i> 16b, inveighed against such practices and caustically described them as more objectionable than theatrical performances.
  In later times, cantors began to repeat words and phrases which occur in the liturgy as part of their musical arrangements. This practice has been censured by a host of authorities including <i>Maharam Schick, Oraḥ Hayyim</i>, no. 31; <i>Pekudat Elazar</i>, no. 25; <i>Eshel Avraham</i>, no. 51; R. Joseph Engel, <i>Ben Porat</i>, II, no. 7; <i>Sedei Hemed, asifat dinim, ma'arekhet hefsek</i>, sec. 9; and <i>Iggerot Mosheh, Oraḥ Hayyim</i>, II, no. 22.
  Recently, in the course of his highly popular "Ask the Rabbi" program broadcast on Israeli radio, Rabbi Ovadiah Yosef responded to a closely-related question: In singing portions of the prayer service may students (or others) repeat verses of <i>hallel</i> or of the psalms included in the prefatory section of the morning prayers? Rabbi Yosef's answer appears in the Kislev 5737 issue of <i>Or Torah</i>.
  Repetition of words and phrases is prohibited for a number of reasons. In addition to marring the solemnity of prayer and generating an aura of a concert performance rather than of divine worship, such repetition frequently seriously distorts the cognitive meaning of the words of the liturgy and may, at times, even impart a ludicrous meaning to the text of the prayer. Another consideration raised by the authorities who address themselves to this question is that unauthorized words or phrases may constitute a <i>hefsek</i> or "interruption" which, in the case of blessings, has the effect of invalidating the prayer.
  Repetition of complete verses of the psalms is, however, significantly different in nature. The meaning of the sentences uttered is not distorted by means of repetition. Since the psalms are not blessings, but are designed to extol the praises of God, repetition does not appear to constitute a <i>hefsek</i>. Indeed, the verses of Psalms 118:25-29 are regularly repeated in the course of <i>hallel</i> for reasons advanced by Rashi, <i>Sukkah</i> 38a. Similarly, Psalms 150:6 is repeated in the daily morning service to indicate that it constitutes the final verse of the section referred to in <i>Shabbat</i> 118b as <i>"hallel."</i>
  Rabbi Yosef cites <i>Orḥot Hayyim, hilkhot pesukei de-zimra</i>, no. 31, and <i>Yeshu'ot Ya'akov</i>, no. 51, sec. 111, who maintain that, these distinctions notwithstanding, other verses of psalms should not be repeated. On the other hand, Rabbi Yosef points to a number of authorities, cited by <i>Bet Yosef, Oralḥ Hayyim</i> 61, who maintain that the verses of <i>kri'at shema</i>, with the exception of the very first verse, may be repeated. All agree that the first verse of <i>kri'at shema</i> may not be repeated lest such repetition be interpreted as a confession of dualism. However, the authorities who permit repetition of the ensuing verses of <i>kri'at shema</i> are apparently of the opinion that, apart from the considerations of possible dualistic misinterpretation which is present only in repetition of <i>kri'at shema</i>, there is no objection to repetition of biblical verses. Accordingly, Rabbi Yosef rules that, while in general, it is not permitted to repeat words and phrases of the liturgy, repetition of verses of psalms (or, less preferably, of complete phrases) is not forbidden.
  Rabbi Joseph B. Soloveitchik, in a letter published in the <i>Cantorial Council of America Bulletin</i> of November, 1965, expresses an opposing view in ruling that repetition is forbidden in the recitation of any biblical verse as well as in <i>hallel</i> and the statutory prayers. This view is presumably predicated upon the rule expressed by the Gemara, <i>Megillah</i> 22a and <i>Ta'anit</i> 27b, which states, "Any verse which was not divided by Moses, we may not divide," i.e., it is forbidden to recite a truncated or incomplete verse. Repetition of a portion of a verse is a form of division.
  Birkat ha-Hammah: An Alternative Date?
  Each twenty-eighth year becomes the occasion for the publication of monographs and articles dealing with a blessing recited only once in twenty-eight years—<i>Birkat ha-Hammah</i>, or the Blessing of the Sun. Immediately thereafter the topic recedes from memory to be recalled only when the dawn of the next twenty-eight year cycle appears on the horizon.
  <i>Birkat ha-Hammah</i> in 5741, which marked the beginning of the 206th twenty-eight year solar cycle, was a singular event in Jewish religious life. Unprecedented numbers of Jews both in Israel and in the United States gathered for impressive public observances of this ritual. The zeal with which <i>Birkat ha-Hammah</i> was observed was reflected in the extraordinary number of scholarly publications dealing with this observance to which but a brief paragraph is devoted in the <i>Shulḥan Arukh</i>. Many more monographs and articles devoted to this subject were published in conjunction with the recent observance of <i>Birkat ha-Hammah</i> than had been published in conjunction with all such previous events combined. The most comprehensive work to be published on this topic is <i>Sefer Birkat ha-Hammah ke-Hilkhatah</i> by a Jerusalem scholar, R. Menachem Gerlitz which includes an appendix containing relatively inaccessible halakhic discussions, responsa and homilies of earlier scholars. Another comprehensive and valuable work is <i>Birkat ha-Hammah</i> by Rabbi Zevi Cohen, author of <i>Tevilat Kelim</i> and <i>Hag'alat Kelim</i>.
  A brief compendium, <i>Birkat ha-Hammah</i>, was also published by R. Moshe Sternbuch. Another pamphlet dealing with this observance, <i>Barah ke-Hammah</i> was published by R. Shlomoh Schweitzer of Spring Valley, N.Y. R. Yehoshua Heschel Deutsch of Los Angeles compiled a booklet entitled <i>Kuntres Berakhah ve-Yeshu'ah</i>. A major portion of a hitherto unpublished work, <i>Davar be-Itto</i>, authored by R. Akiva Schlesinger (known as the <i>Lev Ivri</i>) deals with the Blessing of the Sun. Edited by R. Moshe Nachum Shapiro, this work contains additional responsa authored by the editor as well as by R. Shmuel Wosner and R. Yitzchak Weisz.
  Many works published in conjunction with earlier observances of <i>Birkat ha-Hammah</i> were also republished. Of particular interest to bibliophiles is the photo-offset publication by Mr. Abraham Schischa of a limited edition of the London 5601 reprint of R. Jacob Meldola's <i>Boker Yizraḥ</i>, the earliest booklet containing the liturgy and laws of <i>Birkat ha-Hammah</i>. A valuable new edition of R. Yechiel Michal Tucatzinsky's informative and authoritative <i>Tekufat ha-Hammah u-Birkhatah</i> was widely disseminated. This work first appeared fifty-six years ago, was republished with additions twenty-eight years later, and now has been republished by the author's son with the addition of a number of important notes. Also republished is R. Pinchas Zelig Schwartz' <i>Yizraḥ Or</i> which may be familiar to many readers as a result of its wide circulation in the United States in 1953. Two classic works, <i>Boker Yizraḥ</i> by R. Yekutiel Aryeh Kamelhar and <i>Or ha-Hammah</i> by R. Meir Dan Hertzberg, were reprinted in a single paperback edition together with <i>Kuntres ke-Ẓet ha-Shemesh</i> by R. Gavriel Zinner. This volume was published by Yeshiva Machazikei Hadas of Belz. Rabbi Zinner's <i>Kuntres ke-Ẓet ha-Shemesh</i> was also published separately by the student organization of Yeshiva Kehilath Yakov of Pupa. Supplementary discussions by Rabbi Zinner, entitled <i>Kuntres ke-Ẓet ha-Shemesh Mahadura Tinyana</i>, appear as an appendix to his <i>Milei de-Pisḥa</i>.
  Particularly noteworthy is a booklet entitled <i>Ke-Ẓet ha-Shemesh</i> published by Mesifta Maharam Schick in Jerusalem containing important responsa and source material. Also of interest is a collection of articles and responsa, <i>Tovim Me'orot she-Bara</i>, compiled by R. Samuel Isaac Roth. Another pamphlet, <i>Tizraḥ ha-Shemesh</i>, contains material gleaned from the writings of R. Naḥman of Braslav.
  A number of items also appeared in English, including this writer's ArtScroll publication, <i>Seder Bircas haChammah</i>, and an interesting article by a mathematician, Charles Elkin, which appears in the <i>Proceedings of the Associations of Orthodox Jewish Scientists</i>, vol. VI (1980). Elkin presents much intriguing information regarding the Jewish calendar in general and the astronomical premises which form the basis of <i>Birkat ha-Hammah</i>. Also of interest is <i>A Blessing for the Sun: A Study of Birkat ha-Hammah from Early Time until the Present</i> by Nehemia Polen and <i>Yiroucho Im Shemesh</i> by R. Avraham Blumenkrantz as well as <i>The Blessing on the Sun</i> published by Yeshivat Dvar Yerushalayim.1<i class="footnote">Articles in the periodical literature discussing various aspects of <i>Birkat ha-Ḥammah</i> include R. Zevi Sloucz, <i>Shevilin</i>, Kislev 5741; R. Moshe Nachum Shapiro, <i>Moriah</i>, Shevat 5741; R. Eliyahu Baruch Kepetsh, <i>Ha-Ma‘ayan</i>, Nisan 5741; Nehemia Polen, <i>Tradition</i>, Spring 1981; R. J. David Bleich, <i>Ha-Pardes</i>, Adar 5741 and <i>Bet Yiẓḥak</i> 5742. A document describing <i>Birkat ha-Ḥammah</i> in Cologne, Germany, in the year 5545, despite difficult weather conditions, was published by Manfred R. Lehmann in the Tishri-Ḥeshvan issue of <i>Sinai</i>. A translation of the sermon delivered by R. Jacob Ettlinger of Altona, Germany on the occasion of the Blessing of the Sun which occurred on the second day of Passover, 5601, appears in <i>Jewish Studies</i>, a publication of Yeshivat Dvar Yerushalayim, no. 30 (Spring 5741) as well as in <i>The Blessing on the Sun</i>.</i>
  <i>Birkat ha-Hammah</i> is a blessing praising God, "who makes the work of creation" and is recited on the occasion of the return of the sun to the position in the heavens which it occupied at the moment of its original creation when that event occurs on the day of the week and at the hour of the day which correspond to the day and hour of the creation of the sun. Genesis 1:14-19 records that the sun was created on the fourth day of the week. According to rabbinic tradition the sun was created at the very beginning of the day and was affixed in the sky in the position occupied at <i>Tekufat Nisan</i>, i.e., the vernal equinox. Thus <i>Birkat ha-Hammah</i> is recited whenever the vernal equinox occurs at the very beginning of the fourth day of the week. At the time of the equinox day and night are equal in duration, each being twelve hours in length. Since in the Jewish calendar each day begins with nightfall the beginning of the fourth day is 6:00 P.M. Tuesday evening.
  According to the dictum of Samuel, <i>Eruvin</i> 56b, the solar year is reckoned as exactly 365 days and 6 hours in length. Given the premise that the sun was created on Tuesday evening at 6:00 P.M. and that this event also marked the first vernal equinox, it may be determined by means of simple arithmetic calculation that the vernal equinox will recur at 6:00 P.M. on a Tuesday evening only once in twenty-eight years. Hence the recitation of <i>Birkat ha-Hammah</i> at twenty-eight year intervals.
  The reader may readily associate the 365 and a quarter day year of Samuel with the identical basis of the Julian calendar and may recall that the Julian calendar was replaced by the Gregorian calendar in 1582 because the solar year is simply not 365 and a quarter days long. It has been determined astronomically that the earth completes its orbit around the sun in 365 days, 5 hours, 48 minutes and 46 seconds. Thus the date assumed for the <i>tekufah</i>, or equinox, advances steadily to a date later and later than the true solar equinox.
  According to our calendar <i>Tekufat Nisan</i> occurs on April 8 throughout this century. Yet the astronomical phenomenon marking the vernal equinox occurs on March 21, some eighteen days earlier. How then can <i>Birkat ha-Hammah</i>, which ostensibly marks the vernal equinox, be recited on a day which in fact does not coincide with this phenomenon? Indeed, it is readily demonstrable that the true astronomical equinox has never recurred on Tuesday evening at 6:00 P.M.
  A number of proposals have been advanced suggesting alternative dates for <i>Birkat ha-Hammah</i> which would be in close conformity with astronomical phenomena. Various dates are suggested by J.D. Eisenstein in his <i>Ozar Yisra'el</i>, X, 189; in an article contributed by him to the <i>Jewish Encyclopedia</i>, XI, 591; and in <i>Ha-Do'ar</i>, August 8, 1952. His various proposals are, however, contradictory and not consistent with any calendrical theory. Moreover, Eisenstein fails to recognize that <i>Birkat ha-Hammah</i> is recited pursuant to a rabbinic edict and any modification thereof must perforce be promulgated in accordance with procedures governing rabbinic legislation.
  A much more carefully formulated proposal was advanced by Dr. Arthur Spier in an article which appeared in <i>Jewish Life</i>, January-February 1953. Spier forthrightly states that no change can be made in the regulations governing <i>Birkat ha-Hammah</i> other than by a properly constituted rabbinic synod. Accordingly, his proposal is presented in the form of a suggestion "addressed to a future Sanhedrin for possible consideration." Spier, the author of a meticulous work, <i>The Comprehensive Hebrew Calendar</i> (New York, 1952) suggests that March 20, the date on which the astronomical spring equinox frequently occurs, be selected as the date for <i>Birkat ha-Hammah</i>. The blessing would be recited at roughly twenty-eight year intervals beginning in 1885. During the course of the next several hundred years March 20 occurs on a Wednesday each twenty-eighth year, except in transition from the twenty-first to the twenty-second and the twenty-second to the twenty-third centuries. In those instances Spier recommends a twenty-nine year interval.
  Spier states quite candidly that on those dates the astronomical <i>tekufah</i> will not occur "at six o'clock Jerusalem time, the <i>beginning</i> of Wednesday, because the Tekufoth do not follow such a periodic rule" and that his proposal does not constitute "a perfect solution."
  In point of fact, this suggestion probably would not be entertained by a future Sanhedrin because of one crucial consideration. It must be recognized that the occurrence of the <i>tekufah</i> on a Wednesday (even if the astronomical equinox were always to occur on March 20, which it does not) is not, in itself, sufficient reason to occasion <i>Birkat ha-Hammah</i>. Indeed, were this so, the original <i>tekufah</i> would have provided for <i>Birkat ha-Hammah</i> five times in each twenty-eight year cycle since, according to the reckoning of Samuel, <i>Tekufat Nisan</i> occurs on a Wednesday with the frequency of five times in twenty-eight years. <i>Birkat ha-Hammah</i> was, however, ordained only once in every twenty-eight year cycle because it is only once in twenty-eight years that the <i>tekufah</i> occurs on the eve of Wednesday at 6:00 P.M. This time is described by the Gemara, <i>Berakhot</i> 59b, as the hour at which Saturn is in the ascendancy and, according to rabbinic tradition, is the hour at which the sun was created. The statement of the Gemara that the blessing is pronounced only when the <i>tekufah</i> occurs on the evening of the third day going into the fourth when Saturn is in the ascendancy is a detailed exposition of the configuration of events which occasions the blessing. It is evident that only recurrence of the <i>tekufah</i> at a time which coincides with both the day and hour of the original creation of the sun is sufficient cause to warrant the blessing. Furthermore, were Spier's suggestion accepted and the hour of the <i>tekufah</i> to be ignored, there would no longer be any reason to limit recitation of <i>Birkat ha-Hammah</i> to once every twenty-eight years. Following Spier's recommendation, it would be logical to ordain <i>Birkat ha-Hammah</i> in every year in which the vernal equinox falls on a Wednesday. This occurs with a much greater frequency than once in twenty-eight years. Hence, adoption of the dates recommended by Spier would appear to be precluded.
  Yet there remains an obvious discrepancy between the rationale underlying recitation of <i>Birkat ha-Hammah</i> and the astronomical facts. In order to understand the nature of <i>Birkat ha-Hammah</i> it is necessary to draw attention to what appears to be an anomaly in the calendar itself. The Jewish calendar is lunisolar, i.e., the months are calculated according to the moon, while the years are reckoned according to the sun. The length of each lunar month approximates the period of time which it takes the moon to complete its rotation around the earth. Twelve lunar months equal approximately 354 days, or approximately 11 days less than the length of a solar year. Thus, in a lunar calendar the months would retrograde through the four seasons, i.e., each year every lunar month would occur about 11 days earlier in the solar year than it occurred in the previous solar year. Hence, the various Holy Days would, over the course of years, occur in each of the four seasons. However, the Torah declares, "Preserve the month of Aviv and observe Passover to the Lord your God" (Deuteronomy 16:1). The commandment requires that Passover occur in the month of Aviv, i.e., in the spring. This is accomplished by periodic intercalation of an additional month in order to assure that Passover will occur after the vernal equinox. The Jewish calendar provides for the addition of seven such months in each cycle of 19 years. This method of reconciling lunar months and solar years is known as the "<i>tekufah</i> of Rav Adda." Rav Adda calculated that 19 solar years are exactly equal to 19 times 12 lunar months plus seven additional, intercalated months. Rav Adda's solar year is equal to 365 days, 55 minutes and 25 27/57 seconds. Rav Adda's calculation is much closer to the length of the solar year than the 365 and a quarter day solar year assumed by Samuel.
  This presents somewhat of a paradox. The essence of the calendar promulgated by Hillel II and in use by us assumes a solar year of 365 days, 5 hours, 55 minutes and 25 27/57 seconds in length as postulated by Rav Adda. Yet for purposes of commencement of the <i>tal u-matar</i> prayer in the Diaspora as well as for recitation of <i>Birkat ha-Hammah</i> the length of the year is reckoned in accordance with the somewhat lengthier calculations of Samuel.
  This paradox was noted by many early authorities, including Ibn Ezra, <i>Sefer ha-Ibbur</i>, p. 8, R. Isaac Israeli, <i>Yesod Olam</i>, Fourth Treatise, chapter 15, and R. Ovadiah ben David in his commentary on Rambam, <i>Mishneh Torah, Hilkhot Kiddush ha-Hodesh</i> 10:1. In explaining the reason for this discrepancy a number of scholars point out that the calendrical calculations were determined by the members of the <i>Bet Din</i> which was responsible for proclaiming the New Moon. These individuals were quite capable of making the mathematical calculations necessary to reconcile the lunar and solar years in accordance with the formula of Rav Adda. Such calculations are, however, too cumbersome for persons lacking proficiency in mathematics. Since every individual is required to pray for rain, some relatively simple way had to be found to enable the common man to determine the approximate date marking the beginning of the rainy season. Samuel's reckoning of the solar year as being 365 and a quarter days in length makes it possible to calculate each of the four seasons without resorting to complicated formulae. Hence Samuel's calculations were widely disseminated and the discrepancy between that reckoning and the solar year was ignored by most people.
  The comments of <i>Hazon Ish, Oraḥ Hayyim</i> 138:4, are helpful in elucidating this point. <i>Hazon Ish</i> is renowned for his independent investigations in establishing precise <i>shi'urim</i> (measurements and sizes) for halakhic purposes and is known to have stressed the necessity for meticulousness in such matters. Nevertheless, he recognized that in some areas of Halakhah the Sages did not ordain measurements and calculations in precise terms. In discussing the lack of precision in Samuel's calculations, <i>Hazon Ish</i> points to the fact that some of the mathematical formulae employed in rabbinic writings are simply approximations. He notes that, at times, "the Halakhah was designed on the basis of approximate calculation, for the <i>mizvot</i> were given solely to purify people and [that they] be meticulous in [fulfilling] His commands, may He be blessed in acceptance of His kingship…. For all of these purposes nothing is lost if the limits delineated be approximate so that even those of imperfect wisdom be capable of fulfilling performative commandments." These comments may also cast light upon the role of Samuel's calculations in establishing <i>Birkat ha-Hammah</i>.
  The blessing "who makes the work of creation" is clearly a <i>birkat hoda'ah</i>, a blessing of thanksgiving. It is recited not only on the occasion of <i>Birkat ha-Hammah</i> but also upon beholding various wondrous phenomena. However, it would appear to this writer that, as recited on the occasion of <i>Birkat ha-Hammah</i>, this blessing is different in nature from the identical blessing as recited upon beholding the wonders of creation. On the latter occasions the blessing is an emotional response expressing thanksgiving for the marvels of nature. However, nothing spectacular is perceived on the occasion of the return of the sun to its original position in the heavens. Indeed, were empirical observation its sole means of discovery, this event would unquestionably pass without notice.
  The blessing on the occassion of <i>Birkat ha-Hammah</i>, it would appear, is not responsive but rather evocative in nature. It is designed to reinforce belief in the doctrine of continuous creation. In his discussion of the first of his Thirteen Principles of Faith, Rambam affirms that God did not simply create the universe by means of a single act for all of eternity but that He constantly recreates the universe. The Sages sought a means of emphasizing this teaching. The return of the sun to its original position and the beginning of a new solar cycle symbolize the continuous and ongoing recreation of the universe. Accordingly, in ordaining <i>Birkat ha-Hammah</i>, the Sages seized upon the 365 and a quarter day year of Samuel which had gained popular currency. Whether or not this assumption was astronomically correct was not a matter of significance to them. Important was the instrumental validity of Samuel's calculations which had been accepted for purposes of recitation of <i>tal u-matar</i>. Acceptance of Samuel's calculations results in a pattern of solar years which repeats itself in twenty-eight year cycles. In such solar cycles <i>Tekufat Nisan</i> unfailingly recurs at the beginning of a Wednesday every twenty-eight years. Regardless of its empirical accuracy, this perceived verity serves to dramatize a cosmological and theological truth of independent validity, namely, the doctrine of continuous creation. The Sages ordained the blessing of <i>Birkat ha-Hammah</i> in order to cause people to reflect upon this fundamental teaching.
  Whatever the theory or theories which may be advanced every twenty-eight years when the difficulties associated with <i>Birkat ha-Hammah</i> become a matter of concern in current halakhic periodical literature, the very attempt to determine the accuracy of the calculations may, in and of itself, constitute the fulfillment of a <i>mizvah</i>. The <i>mizvah</i> of <i>Kiddush ha-Hodesh</i> (which, according to Rambam, includes the obligation to add an intercalary month when necessary) requires that the <i>Bet Din</i> be proficient in both the halakhic and astronomical considerations governing the establishment of twenty-nine or thirty day months and leap years. Thus the study of astronomy was certainly obligatory upon members of the <i>Bet Din</i>. At least one authority maintains that such study and the mathematical determination of the calendrical system is, in our day, mandatory for every individual.
  R. Zevi Elimelech Schapiro of Dynow, <i>Derekh Pekudekha</i>, no. 4, sec. 10, presents the remarkable view that, with the lapse of monthly sanctification of the New Moon by the <i>Bet Din</i>, proficiency in calendrical calculations became the responsibility of each individual. Each person must himself determine which months are "full," i.e., thirty days in length, and which are "deficient," i.e., twenty-nine days in length, as well as which years are leap years and which are common years. Although a fixed calendar has been promulgated and is not subject to change, <i>Derekh Pekudekha</i> maintains that every individual is obliged personally to calculate the length of months and years.
  Although he does not state this thesis explicitly, <i>Derekh Pekudekha</i> presumably maintained that the <i>Bet Din</i> did not exercise jurisdiction in these matters as a judicial body but as the agents of all individual Jews. Since at present, there is no longer a <i>Bet Din</i> to serve as agent, the obligation becomes an individual one and hence the antecedent calculations are also a personal obligation. In order to fulfill the minimal requirement, declares <i>Derekh Pekudekha</i>, an individual must know the time of the <i>molad</i> (appearance of the nascent moon) and personally calculate the time of the next <i>molad</i>. Furthermore, one must know the precise order of leap and common years in the nineteen year cycle as well as the position in the cycle of the year which is current. An individual will thus have at least a minimal awareness of the reason why a given year is a common or a leap year.
  Immersion of Disposable Aluminum Utensils
  Utensils which are acquired from a non-Jew and are designed for use in the preparation or serving of food require immersion in a <i>mikveh</i> prior to use. This requirement is derived from Numbers 31:23 and is viewed as biblical in nature by the overwhelming majority of authorities.
  Among modern conveniences available to housewives are disposable aluminum baking pans and trays used for cooking or warming pre-cooked foods. These utensils are sometimes reused a limited number of times but are most frequently discarded after their initial use. Rabbi Elimelech Bluth, writing in the Summer 5733 issue of <i>Le-Torah ve-Hora'ah</i>, published by Mesivtha Tifereth Jerusalem, examines the status of these utensils with regard to the requirement of immersion.
  The first question examined by Rabbi Bluth is whether any utensil made of aluminum need be immersed prior to use. <i>Tiferet Yisra'el, Yevakesh Da'at</i>, sec. 44, cites the opinion of the R. Elijah of Vilna, who maintains that the biblical obligation with regard to immersion of utensils is limited to vessels made of the six types of metal enumerated in Numbers 31:23; viz., gold, silver, copper, iron, tin and lead. Since aluminum is not among the enumerated substances, it follows that, according to R. Elijah of Vilna, there exists no biblical obligation with regard to the immersion of aluminum utensils even if they were to resemble other metal utensils in every other respect. Nevertheless, argues Rabbi Bluth, aluminum utensils require immersion for three reasons:
  (1) Many authorities maintain that <i>all</i> metal utensils require immersion, not merely those fashioned from the biblically enumerated substances.
  (2) Aluminum utensils customarily contain an admixture of other metallic substances added as alloys. The entire utensil thus requires immersion because of the other metals of which it is composed.
  (3) Even according to the opinion of R. Elijah of Vilna there exists a rabbinic obligation with regard to the immersion of utensils made of other substances, just as there exists a rabbinic obligation with regard to the immersion of glass utensils. <i>Avodah Zarah</i> 75b indicates that any vessel which can be repaired by a smelting process must be immersed prior to use by virtue of rabbinic decree. Aluminum utensils are clearly among the vessels which satisy this description.
  The second question examined by Rabbi Bluth is whether disposable utensils, regardless of the material from which they are fashioned, require immersion. This question is also the subject of earlier discussions by R. Yitzchak Ya'akov Weisz, <i>Minḥat Yizḥak</i>, V, no. 32, sec. 1, and R. Ya'akov Breisch, <i>Helkat Ya'akov</i>, III, no. 115.2<i class="footnote">See also R. Nachum Rabinovitch, <i>Ha-Darom</i>, no. 35 (Nisan, 5732), pp. 129-130.</i> Rabbi Breisch's responsum focuses upon the necessity of immersing paper plates covered with silver foil and concludes that immersion is not necessary since such utensils are discarded immediately following use. Rabbi Weisz reaches an identical conclusion with regard to disposable aluminum utensils "since they are not fit for permanent use." Rabbi Bluth, in a more detailed analysis, demonstrates that the fact that these aluminum utensils are <i>customarily</i> discarded after a single use does not effect their status with regard to the statutory requirements of immersion. The <i>Tosefta</i>, cited by Rabbenu Shimshon in his commentary on the Mishnah, <i>Kelim</i> 17:15, distinguishes between two categories of utensils. Utensils fashioned from hollowed-out turnips, citrons and gourds, are not deemed to have the status of "vessels" with regard to laws of ritual impurity. Utensils fashioned from pomegranates, acorns and nuts are deemed to have the status of "vessels" with regard to laws of ritual impurity. <i>Tosafot, Shabbat</i> 66a, explains that utensils of the first category are not durable, presumably because they are made of materials which decay rapidly, whereas utensils of the second category, even though customarily discarded, could well be retained for use over a significant period of time. The distinguishing factor with regard to laws of ritual impurity is not the number of times the utensil is used but the utensil's potential for sustained use.
  Rabbi Bluth does, however, find another reason for exempting some disposable utensils from immersion. A utensil which is used only once because of its flimsy composition is, in his opinion, not to be considered a "vessel" but rather the "shell" or protective covering of the food. As such, the aluminum in which the food is contained is deemed an appendage of the food rather than a "vessel" possessing independent status.3<i class="footnote">See also R. Zevi Cohen, <i>Tevilat Kelim</i> (Jerusalem, 5738) 1:7.</i>
  Rabbi Moses Feinstein, in an addendum appended to this article, apparently questions whether these considerations are applicable with regard to aluminum utensils currently in use. Rabbi Feinstein opines that aluminum utensils which cannot possibly be used more than "two or three times" do not require immersion prior to use. However, he recognizes the possibility that, in point of fact, such utensils might well be reused a greater number of times, but are discarded only because they are inexpensive and hence are replaced simply to avoid bother. When this is indeed the case, concludes Rabbi Feinstein, such utensils require immersion prior to use.
  Rabbi Menasheh Klein, <i>Mishneh Halakhot</i>, VII, no. 111, disputes the basic contention that utensils designed for immediate disposal do not require immersion. Rabbi Klein rules that immersion is required even for utensils designed to be used on but a single occasion.
  Immersion of Toasters
  Utensils purchased by a Jew from a non-Jew require immersion in a <i>mikveh</i> prior to use in conjunction with the preparation or eating of food. The relevant halakhot are recorded in <i>Yoreh De'ah</i> 120. The immersion of an electrical utensil such as a toaster presents a practical problem since contact with water may cause damage to the appliance.
  In responsa published in <i>Iggerot Mosheh, Yoreh De'ah</i>, I, nos. 67 and 68, in discussing immersion of electrical appliances in general, without specific mention of a toaster, Rabbi Moses Feinstein rules that only that portion of the appliance used for cooking need be immersed. Rabbi Feinstein rules that the portion used for cooking should be immersed in the <i>mikveh</i> and covered with water, but that the portion in which the electrical wiring is housed need not come into contact with the water. Rabbi Feinstein reasons that the appliance is, in effect, composed of two separate utensils: one in which cooking or baking takes place and a second which serves as a housing unit for the electrical wiring. The latter utensil does not come into contact with food and hence does not require immersion.4<i class="footnote">Cf., R. Ya‘akov Breisch, <i>Ḥelkat Ya‘akov</i>, II, no. 61, and R. Yitzchak Ya‘akov Weisz, <i>Minḥat Yiẓḥak</i>, II, no. 72, who maintain that electrical appliances must be completely immersed. See also R. Shmuel ha-Levi Wosner, <i>Shevet ha-Levi, Yoreh De‘ah</i>, I, no. 57, sec. 3 and R. Zevi Cohen, <i>Tevilat Kelim</i> (Jerusalem, 5738) 11:51.</i>
  More recently, in the sixth issue of <i>Am ha-Torah</i>, (5737), a publication sponsored by the Zeirei Agudath Israel, Rabbi Feinstein addresses himself specifically to the question of whether or not toasters require immersion at all. Rabbi Feinstein rules that toasters, as distinct from other electrical appliances, do not require immersion. Rabbi Feinstein argues that a toaster is not included in the category of "utensils used in conjunction with a meal" because bread is perfectly edible without benefit of toasting.5<i class="footnote"><i>Ḥelkat Ya‘akov</i>, I, no. 126, and II, no. 61, sec. 3, argues that such utensils are exempt from immersion because they are “attached to the ground” by means of an electrical cord. See also R. Isaac Liebes, <i>Teshuvot Bet Avi</i>, I, no. 114. This view is rejected by R. Weisz in <i>Minḥat Yiẓḥak</i>, II, no. 72, and <i>Ha-Ma’or</i>, Av 5716; R. Meir Amsel, <i>Ha-Ma’or</i>, Iyar 5716 and Tammuz 5716; <i>Shevet ha-Levi, Yoreh De‘ah</i>, no. 57, sec. 3; and <i>Tevilat Kelim</i>, chap. 1, note 16, and chap. 11, note 46. See also R. Ephraim Grunblatt, <i>No‘am</i>, VI (5723), 291.</i> This argument is advanced despite the fact that the vessels used for the heating of water require immersion even though water is certainly potable without cooking. Rabbi Feinstein distinguishes between the two cases by stating that hot water is a matter "of great necessity for all people" while this is not the case with regard to toasted bread.
  This ruling is sharply challenged by Rabbi Menasheh Klein in the Kislev 5738 issue of <i>Sha'arei Halakhot</i>, a publication of Yeshiva Bais Shearim.6<i class="footnote">Similarly, <i>Tevilat Kelim</i> 11:52, citing R. Shlomoh Zalman Auerbach and R. Shmuel ha-Levi Wosner, rules that toasters require immersion.</i> <i>Hatam Sofer, Yoreh De'ah</i>, no. 120, presents an analysis of the concept of "utensils used in conjunction with a meal." The obligation with regard to the immersion of utensils acquired from a non-Jew is derived from Numbers 31:23. The Bible commands that implements seized as spoils of war in the course of the battle against Midian be kashered, i.e., purged of nonkosher matter absorbed by the utensils, by means of burning in fire or boiling. The obligation to immerse the vessels in a <i>mikveh</i>, in addition to the obligation with regard to kashering, is derived by the Gemara, <i>Avodah Zarah</i> 75b, from a pleonasm in the text. <i>Hatam Sofer</i> indicates that the obligation concerning immersion is coextensive with the obligation concerning kashering, i.e., any utensil which requires kashering prior to use for its designed purpose also requires immersion. Thus the obligation is limited to "utensils used in conjunction with a meal" since only eating implements need be kashered, although such utensils must be immersed even though they are not used for hot foods. Rabbi Klein shows that this analysis of the nature of the obligation concerning immersion is also formulated by Ritva in his commentary on <i>Avodah Zarah</i> 75b and by <i>Issur ve-Hetter, sha'ar</i> 58, no. 83, and may be inferred from Rashi's comments, <i>Avodah Zarah</i> 75b, as well.
  According to this analysis, a toaster clearly requires immersion, argues Rabbi Klein. A used toaster which is acquired from a non-Jew certainly must be kashered since the appliance could readily have been used to toast bread baked with nonkosher shortening or sandwiches containing nonkosher foods. Thus, according to the explanation advanced by <i>Hatam Sofer</i>, a toaster requires immersion in a <i>mikveh</i> as well.
  Rabbi Klein makes no reference to the question of whether the entire toaster need be immersed. However, applying the criteria formulated by <i>Hatam Sofer</i>, it would appear that the entire appliance requires immersion. This is so even if one accepts Rabbi Feinstein's contention that a toaster is, from the point of view of Halakhah, two "vessels" rather than one. According to <i>Hatam Sofer</i>, any implement which requires kashering, ipso factor requires immersion. In a nonkosher appliance, the unit housing the electrical components, unless it is entirely discrete and not physically continguous with the cooking portion proper, would require kashering. The principles governing kashering, which are based upon empirical considerations, render that process a necessity for the entire utensil whenever it is fashioned out of a single piece. This is so despite the fact that in other areas of Jewish law, e.g., laws of ritual defilement, the implement may, on the basis of conceptual considerations, be regarded as two separate vessels. On the basis of <i>Hatam Sofer</i>'s analysis it may be argued that since, in the case of a nonkosher toaster, the entire appliance requires kashering, it then follow that, when purchased from a non-Jew, the entire appliance requires immersion in a <i>mikveh</i>. This, of course, is true not only of toasters, but applies with equal cogency to any electrical appliance used in the preparation of food.
  Rabbi Moshe Stern, the Debrecyner Rav, in his <i>Be'er Mosheh</i>, IV, no. 100, assumes without question that electric toasters require immersion but offers a practical suggestion in order to circumvent this requirement.7<i class="footnote">For additional suggestions see <i>Tevilat Kelim</i> 11:51.</i> <i>Hokhmat Adam</i> 73:13 rules that when immersion of an oversized utensil proves to be too cumbersome a hole may be made in the vessel sufficiently large to render the utensil unusable and thereafter the vessel should be repaired by a Jewish workman. Perforation of the utensil has the effect of nullifying the utensil's status as a "vessel." Since, upon repair, the utensil regains status as a "vessel" through the workmanship of a Jew it is exempt from the requirement for immersion. Rabbi Stern suggests that the toaster be taken apart in a manner that will require a repairman to put it together again. A disassembled utensil which requires the skill of an artisan for reassembly also loses the status of a "vessel." Following reassembly by a Jewish workman the toaster no longer requires immersion in a <i>mikveh</i>.
  Rabbi Stern also reports that he has been advised by electricians that if the toaster is not used for a period of two days following immersion no damage will occur. This period should be sufficient to allow for the drying of electrical wires and the evaporation of any remaining drops of water.
  Netilat Yadayim by Soldiers
  The State of Israel's need to maintain a large standing army in a constant state of preparedness has raised questions pertaining to the applicability of various provisions of Jewish law dealing specifically with soldiers engaged in battle. Such questions arise with regard to many diverse facets of personal and military life governed by halakhic regulations. The Tevet 5736 issue of <i>Ha-Ma'ayan</i> features an article by Rabbi Shiloh Raphael in which he examines a ritual question; viz., the obligation of washing the hands before meals as it applies to members of Israel's armed forces.
  The Mishnah, <i>Eruvin</i> 17a, enumerates four provisions of Jewish law from which dispensation is granted to soldiers engaged in warfare. The washing of hands before partaking of bread is, in ordinary circumstances, mandated by virtue of rabbinic decree. Such washing of the hands is, however, one of the enumerated obligations from which soldiers are exempted. The question to be resolved is whether this exemption is limited solely to personnel engaged in combat or whether the exception is more inclusive in nature.
  Rabbi Raphael maintains that the exemption is a broad one and bases his contention upon two considerations. In the first place, the Mishnah, in delineating these exceptions, speaks of a <i>maḥaneh</i>, or camp. While many early authorities maintain that the exemption applies only to soldiers, <i>Maggid Mishneh, Hilkhot Eruvin</i> 1:3 and <i>Bi'ur ha-Gra, Oraḥ Hayyim</i> 168:8, demonstrate that at least several authorities are of the opinion that the term "camp" employed by the Mishnah encompasses not only military camps but any type of encampment in which dwellers are deprived of the usual amenities of developed areas. Secondly, Rabbi Raphael demonstrates that, according to all authorities, soldiers are exempt not only when actually engaged in military action but also when preparing for military activity. Accordingly, Rabbi Raphael concludes that these provisions apply not only to combat soldiers but also to border patrols and other paramilitary units as well.
  This cogent conclusion notwithstanding, not every soldier is exempt from the obligation with regard to washing the hands. Rabbi Isaac ha-Levi Herzog, <i>Heikhal Yizḥak, Oraḥ Hayyim</i>, no. 47, states that members of the armed forces assigned to urban centers or quartered in permanent camps in areas where there is no tension are not included in this exemption. Dispensation from washing the hands is occasioned by the hardship encountered in military camps and does not apply to situations in which usual amenities are readily available.
  Rabbi Raphael also discusses a further limitation upon this exemption. The exemption from the obligation with regard to washing the hands applies only to a "camp," but not to individual soldiers. The term "camp," by definition, refers to a group of not less than ten individuals as indicated by the Palestinian Talmud, <i>Eruvin</i> 1:10. <i>Hazon Ish, Eruvin, Likkutim</i> 112:6, asserts that the ten persons who constitute the "quorum" for a camp must be located within a geographical area of not less than approximately 71 ells. Thus, soldiers enroute to their units are not covered by the statutory exemption until they reach their camp. Moreover, declares <i>Hazon Ish</i>, qualifications for inclusion in the "quorum" of ten are identical with those for inclusion in a <i>minyan</i> for purposes of prayer. It would thus follow that, according to <i>Hazon Ish</i>, female units are not exempt from this obligation. An interesting question which merits further investigation is the question of whether or not female personnel serving together with a unit consisting of at least ten males are also exempt from this obligation.
  Even when soldiers are exempt from the ritual of washing the hands it would appear that, according to <i>Mishnah Berurah</i> 158:36, they are obligated to wear gloves or to wrap their hands in a cloth, if available, in order to avoid touching food with unwashed hands. According to <i>Shulḥan Arukh, Oraḥ Hayyim</i> 163:1, both hands must be covered, while according to Rema, loc. cit., the only requirement is that the hands do not touch the food. Thus, according to Rema, only the hand which touches the food need be covered or, alternatively, food may be eaten with a fork. However, <i>Arukh ha-Shulḥan, Oraḥ Hayyim</i> 168:14, asserts that the exemption from washing the hands is all-encompassing and that soldiers are not obligated even to cover unwashed hands with a cloth. This appears to be the opinion of <i>Bet Yosef, Oraḥ Hayyim</i> 163, as well.
  When, however, water is readily available within the camp, <i>Perishah, Oraḥ Hayyim</i> 168:8, maintains that soldiers are required to wash the hands in the usual fashion. Rabbenu Yonatan, in his commentary on <i>Eruvin</i> 17a, indicates that soldiers are obligated to perform this ritual even in situations in which there is no water within the camp itself but in which water is available within a radius of a <i>mil</i>. Following Rema, Oraḥ Hayyim 459:2 and <i>Yoreh De'ah</i> 69:6, Rabbi Raphael defines a <i>mil</i> as the distance which can be traversed by an average person within a period of 18 minutes. However, some authorities assert that a <i>mil</i> is to be measured as the distance covered in 22.5 minutes, while others state that the correct time measurement is 24 minutes. <i>Mishnah Berurah, Bi'ur Halakhah</i> 459:2, rules that normative halakhic practice is in accordance with the opinion that a <i>mil</i> is measured as the distance traversed in 22.5 minutes. Rabbi Raphael raises one further consideration. He suggests that, according to the view of Rabbenu Yonatan, the distance to be measured should be calculated as that which can be travelled within the specific period of time by a motor vehicle, if available. Thus, if water could be brought from a distance of 22.5 minutes travel-time the exemption would not be operative. Rabbi Raphael himself rejects this position and argues that soldiers are obligated to wash their hands before eating only if water is available within the camp itself, but that they are not obligated to journey even a minimal distance by car or by foot for this purpose.
  Ẓizit for Nylon and Polyester Garments?
  Modern technology has devised a host of synthetic fibers which to a large extent have replaced natural materials in the manufacture of clothing. Garments made of these materials are often lighter, cooler, cheaper, and more easily laundered than clothes made of natural fibers. The selfsame advantages have prompted purveyors of religious items to utilize manmade fibers in the manufacture of the four-cornered <i>tallit katan</i>. Indeed, a <i>tallit katan</i> of polyester is at present more readily available than one of cotton. There are, however, those who question whether four-cornered garments made of such synthetic materials require <i>zizit</i>. If not, the blessing may not be pronounced upon donning the garment and such a <i>tallit katan</i>, since it is worn solely in order to enable the wearer to fulfill a <i>mizvah</i>, serves no purpose. The question whether nylon or polyester may be used as a <i>tallit katan</i> is examined in detail by Rabbi Benjamin Silber of Bnai Brak in two articles which appeared in the Heshvan and Adar II-Nisan 5736 issues of the Israeli journal, <i>Ma'ayan ha-Torah</i>, published by the Pressburg Yeshiva, <i>Shevet Sofer</i>. The Elul 5735-Tishri 5736 and Adar I 5736 issues of this journal also feature articles by Rabbi Nathan Gestetner and Rabbi Zevi Domb dealing with this question. The matter is also discussed by Rabbi Silber in his commentary on <i>Hayyei Adam, Bet Barukh</i>, no. 11, p. 230, as well as in his <i>Oz Nidberu</i>, VII, nos. 52-54. Earlier discussions of this question appear in Rabbi Zevi Pesach Frank, <i>Har Ẓevi, Oraḥ Hayyim</i>, I, no. 9; Rabbi Yonatan Steif, <i>Teshuvot Mahari Shteif</i>, no. 27; Rabbi Moses Feinstein, <i>Iggerot Mosheh, Oraḥ Hayyim</i>, II, no. 1; and Rabbi Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, XII, no. 3.
  It is clear that not all materials require <i>zizit</i>. The Gemara, <i>Menaḥot</i> 40b, specifically excludes leather garments from this obligation. <i>Levush</i> 10:4 explains that only a <i>"begged"</i> or "garment" requires <i>zizit</i>. In terms of its halakhic definition, a <i>begged</i> must be made of woven cloth; a four-cornered item of clothing made of solid, unwoven material such as leather is not considered to be a <i>begged</i>, and is, therefore, exempt from <i>zizit</i>. Accordingly, Rabbi Frank rules that a nylon garment may be used as a <i>tallit katan</i> provided it is made of cloth woven from nylon thread, as is usually the case. Rabbi Frank states, however, that should such a garment be made of a single sheet of unwoven nylon it would be exempt from <i>zizit</i> as is a garment of leather.
  Rabbi Feinstein presents an opposing view in ruling that all garments made of synthetic materials are exempt from <i>zizit</i>. In his view, all such garments are comparable to leather garments by virtue of the fact that these materials can be synthesized in the form of solid sheets which can then be cut and sewn as garments without need for weaving. Garments made of solid, unwoven material are, according to Rabbi Feinstein, certainly exempt from <i>zizit</i>. Rabbi Feinstein argues that garments made of synthetic fiber are exempt even if a solid bolt of man-made material is produced as the product of the manufacturing process and is only subsequently cut into threads and then woven into cloth.
  As evidence he cites the statements of Rashi and Bertinoro in their respective commentaries on the Mishnah, <i>Kelim</i> 27:1, pertaining to garments fashioned of thin, woven strips of leather. Such leather garments, declare Rashi and Bertinoro, are not subject to the ritual defilement associated with "woven" garments. Since the weaving process is not essential in light of the fact that the garments could be fashioned from the original whole piece of leather, the process of cutting the leather into strips and later weaving the strips into a garment does not give it the status of a "woven" garment. This line of reasoning applies to garments made of synthetic materials as well, argues Rabbi Feinstein. Since, when such materials are used, weaving is not essential to the making of the garment, the garment— even when in fact it is woven—is exempt from <i>zizit</i>. Moreover, argues Rabbi Feinstein, the garment is exempt from <i>zizit</i> not only in cases in which the material is synthesized in large pieces which are then cut into thread from which cloth is woven but also when the original product is synthesized in the form of thread at the very beginning of the production process and subsequently woven into cloth. Rabbi Feinstein opines that since the material could have been synthesized in sheet form rather than as thread, a garment made of such material is not to be considered a <i>"begged."</i>
  Rabbi Gestetner adduces sources in an endeavor to show that a <i>"begged"</i> must, by definition, be fashioned from materials derived from either vegetable or animal matter. Materials composed of inorganic matter are, according to this thesis, excluded from the category of <i>"begged."</i> Rabbi Silber disputes this conclusion and contends, <i>arguendo</i>, that if such a distinction were valid it would be limited to a definition of <i>"begged"</i> for matters of ritual impurity but entirely irrelevant to the concept of a <i>"begged"</i> which requires <i>zizit</i>.
  Rabbi Yonatan Steif advances a rather curious argument in support of the position that garments made of synthetic materials are exempt from <i>zizit</i>. <i>Menaḥot</i> 39b cites specific biblical references to linen and wool as the materials of which "garments" are woven. The Gemara then proceeds to query, "Whence can garments of camel hair or rabbit hair, or goats' hair, or of raw silk or floss-silk or fine silk be added?" In answer, the Gemara cites the redundant phrase "or a garment" (Lev. 13:47). It is usually assumed that the materials enumerated by the Gemara are simply common examples of materials used in weaving garments but that that list is by no means exhaustive. Rabbi Steif, however, maintains that the enumerated materials exhaust the category of <i>begged;</i> other materials are not mentioned because they are not <i>beggadim</i>. According to this position, even other natural fibers not recorded in this list are exempt from <i>zizit</i>.
  This argument might perhaps be entertained if it is ruled that materials other than wool and linen require <i>zizit</i> only by virtue of rabbinic ordinance; the Sages may then have included in their decree only materials in common use at the time and may have done so by the process of enumerating only specific materials with the intention of excluding all others. However, if the materials enumerated in <i>Menaḥot</i> 39b require <i>zizit</i> by virtue of biblical law, as Rema, Oraḥ Hayyim 9:1, does rule, the argument is difficult to fathom. The materials which are listed are not specifically enumerated in Scripture but require <i>zizit</i> because they are considered to be within the category of <i>begged</i> by virtue of a pleonasm which is general in denotation. There is no reason to assume that the reference is to one type of material and not to another, provided, of course, that such materials possess the stated characteristics of <i>begged</i>.
  Rabbi Silber takes issue with the position of both Rabbi Feinstein and Rabbi Frank and maintains that garments made of synthetic material require <i>zizit</i> no less than those made of natural fibers. He recognizes no distinction between garments made of synthetic thread and those cut directly from sheets of synthetic material.8<i class="footnote">This is also the position of Rabbi Y. E. Henkin, <i>Am ha-Torah</i>, no. 10, p.7. Rabbi Henkin offers a somewhat different explanation for the exclusion of leather from the obligation of <i>ẓiẓit</i>.</i> The arguments of those who disagree, Rabbi Silber points out, are based primarily on the phraseology of the <i>Levush</i> who states that a <i>"begged,"</i> by definition, must be made of woven material. Rabbi Silber cites <i>Mishnah Berurah</i> 10:11 which omits any reference to weaving in citing <i>Levush</i>. According to Rabbi Silber, "weaving" is not a necessary condition of what constitutes a <i>begged</i> but is simply a generalization used to exclude materials which do not constitute a <i>begged</i>. Leather is exempt, argues Rabbi Silber, because by its nature it does not generate warmth. Since it is not generally used for the making of clothing it is not deemed to be a <i>"begged"</i> even if it is fashioned into an article of clothing. This is so even if the leather is first cut into strips and then woven into a garment. That leather is not considered to be a <i>begged</i> is manifest from the phrase "a garment or leather" (Leviticus 11:32). Reference to a "a garment (<i>begged</i>) <i>or</i> leather" as separate entities demonstrates that leather, by definition, is not deemed to be a <i>begged</i>. Since synthetic fibers do provide warmth and are commonly used in the manufacture of clothing, a garment made of synthetic material, argues Rabbi Silber, should be considered a <i>begged</i> and such a garment requires <i>zizit</i> if it is four-cornered in shape. Furthermore, argues Rabbi Silber, since synthetic cloth is manufactured by a process which causes separate particles to adhere to one another, this process is comparable to weaving cloth out of individual strands of thread. Such materials are significantly different from leather which comes into being as a single entity. The term "woven" as used by <i>Levush</i>, argues Rabbi Silber, is intended simply to exclude that which is fashioned from a single piece, e.g., leather. According to Rabbi Silber, nylon or polyester may be used in the making of a <i>tallit katan</i>.
  The basic contention that the term <i>"begged"</i> does not refer exclusively to a garment made of woven material is borne out by Rambam's ruling, <i>Kelim</i> 1:11, to the effect that cloth made of pressed or matted (but unwoven) materials is considered to be in the category of <i>begged</i> "for all purposes." This is also stated explicitly by Rabad in his commentary on <i>Torat Kohanim, Parshat Shemini</i> 6:8.9<i class="footnote">See also <i>Ḥatam Sofer</i>, VI (<i>Likkutim</i>), no. 81 and sources cited by R. Yitzchak Ya‘akov Weisz, <i>Minḥat Yiẓḥak</i>, IV, no. 118, which indicate that, practically speaking, paper cannot be made into a garment but were it possible to do so—as indeed is the case at present, for example, with regard to disposable swimming suits and the like—a paper garment would be deemed a <i>begged</i> for purposes of ritual impurity.</i>
  Rabbi Waldenberg maintains that only leather is excluded from the obligation of <i>zizit</i> and requires that <i>zizit</i> be affixed to garments made of synthetic materials. He further states that this is most certainly the case when the synthetic material is produced in the form of thread which is then woven into cloth.
  
  Chapter III Medical Questions
  
  <i>The Torah has granted license to the physician to heal; moreover, this is a mizvah and is included in the category of saving life; and if the physician withholds his services it is considered as shedding blood</i>.
  SHULHAN ARUKH, YOREH DE'AH 336:1
  Judaism posits an obligation to preserve life as a fundamental obligation binding upon all its adherents. This obligation places the responsibility for preservation of life upon the shoulders of any person, professional or layman, capable of rendering assistance. The physician, by virtue of his training and professional expertise, is uniquely qualified to perform such services in situations which require medical attention and hence is subject to a concomitant obligation to do so.
  The obligation to render medical assistance flows from multiple scriptural sources and a person who renders such aid fulfills a number of diverse <i>mizvot</i>. Perhaps the most widely quoted source is the statement found in <i>Baba Kamma</i> 85a: " 'And he shall cause him to be thoroughly healed' (Exodus 21:20)—from here [it is derived] that the physician is granted permission to heal." Ramban, in his authoritative halakhic work, <i>Torat ha-Adam</i>, comments that the "permission" or "dispensation" of which the Gemara speaks in actuality constitutes a commandment or obligation ("<i>Hai reshut, reshut de-mizvah hi</i>"). Thus the medical practitioner is not merely permitted, but is required, to render aid.
  Rambam, both in his <i>Commentary on the Mishnah, Nedarim</i> 4:4, and in <i>Mishneh Torah, Hilkhot Nedarim</i> 6:8, declares that the obligation to render medical assistance is encompassed within the scriptural exhortation "And you shall restore it to him" (Deuteronomy 22:2). Although, in context, the verse refers explicitly to restoration of lost property, the Gemara, <i>Sanhedrin</i> 73a, declares that this verse establishes an obligation to "restore" a fellow man's life as well as his property and, accordingly, posits an obligation to rescue a neighbor from danger such as drowning, mauling by an animal or being set upon by bandits. A number of latter-day authorities comment that the accompanying negative prohibition, "You may not hide yourself" (Deuteronomy 22:3) similarly applies to "restoration" of life as well as of property. The Gemara, <i>Sanhedrin</i> 73a, also cites the admonition "Nor shall you stand idly by the blood of your fellow" (Leviticus 19:16) as requiring intervention in the aforementioned situations in order to preserve life.
  An obligation requiring the physician to render assistance in nonlife-threatening situations may be established on the basis of other sources. Ramban, in his <i>Torat ha-Adam</i>, finds that an obligation on the part of the physician to heal is inherent in the commandment "And you shall love your neighbor as yourself" (Leviticus 19:18). As a specific instance of the general obligation to manifest love and concern for one's neighbor, the obligation to heal encompasses not only situations posing a threat to life or limb, or demanding restoration of impaired health, but also situations of lesser gravity warranting medical attention for relief of pain and promotion of well-being.
  In addition, Ramban, in his <i>Commentary on the Bible</i>, Leviticus 25:36, interprets the verse, "And your brother shall live with you," as constituting a general obligation to preserve the life of one's fellow. Earlier, R. Aḥa'i Ga'on, <i>She'iltot, She'ilta</i> 38, adduced the discussion found in the Gemara, <i>Baba Mezi'a</i> 62a, in interpreting this verse in a similar manner. R. Shimon ben Ẓemaḥ Duran, <i>Teshuvot Tashbaz</i>, III, no. 37, declares that the verse "And he shall live by them" (Leviticus 18:5) constitutes yet another <i>mizvah</i> commanding the preservation of life. The Gemara, <i>Yoma</i> 85b, renders this passage as meaning, "And he shall live through [the commandments] but he shall not die by means of them," and accordingly interprets this verse as establishing the principle that <i>mizvot</i> are suspended in face of life-threatening dangers. The regulation mandating suspension of <i>mizvot</i> in face of danger, argues <i>Tashbaz</i>, must be understood as establishing a general obligation to preserve life whether or not violation of biblical law is necessary to accomplish that goal.
  A latter-day authority, R. Yehudah Leib Zirelson, <i>Teshuvot Azei ha-Levanon</i>, no. 61, asserts that the obligations posited by the Gemara, <i>Sanhedrin</i> 73a, apply under nonlife-threatening circumstances no less than in life-threatening situations. The verse "And you shall restore it to him" (Deuteronomy 22:2) mandates not only the return of lost property but, <i>a fortiori</i>, preservation of life as well. The verse, then, does not refer only to the return of objects of material value. Accordingly, declares <i>Azei ha-Levanon</i>, restoration of health to a person suffering from an illness is assuredly included in the commandment, "And you shall restore it to him."
  <i>Azei ha-Levanon</i> further contends that failure to provide a medical remedy, when available, entails violation both of the commandment "You may not hide yourself" (Deuteronomy 22:3) which, in its biblical context, refers to a person who comes upon lost property belonging to another and of the admonition "Nor shall you stand idly by the blood of your fellow" (Leviticus 19:16). <i>Sifra, Kedoshim</i> 41, declares that these commandments establish an obligation making it incumbent upon an individual to act, if he is capable of doing so, not only to preserve the life of another, but also in order to prevent his fellow from sustaining a financial loss. This obligation is recorded by Rambam, Hilkhot Rozeaḥ 1:13; <i>Sefer ha-Hinnukh</i>, no. 237, and Shulḥan Arukh, Hoshen Mishpat 426:1. It similarly follows, argues <i>Azei ha-Levanon</i>, that a person is under the selfsame obligation to prevent deterioration of another person's health if he possesses the requisite knowledge and skill to be of assistance in providing medical care. Failure to do so, concludes <i>Azei ha-Levanon</i>, would constitute transgression of these two negative commandments as well as of the positive commandment "And you shall restore it to him." Furthermore, as noted earlier, according to Ramban, failure to render medical assistance entails abrogation of the positive commandment "And you shall love your neighbor as yourself." Thus, even in situations which pose no threat to life, a person in a position to do so is bound to render medical assistance by no less than four separate <i>mizvot</i>.
  Study of Anatomy I: Dissection
  Anatomical studies which involve dissection of human cadavers are beset with a number of halakhic problems. These questions have been the subject of ongoing halakhic analysis and discussion over a period of centuries. A cursory survey of some aspects of this topic and of the different positions taken by various prominent halakhic authorities is presented by Rabbi Shlomoh Goren in the Iyar 5739 issue of <i>Shevilin</i>. This article is reprinted in the Spring 5740 issue of <i>Me'orot</i>, the second edition of a new journal sponsored by the Office of the Chief Rabbinate of Israel. A comprehensive bibliography listing the vast majority of responsa and articles on the topic of anatomical dissection and autopsy was prepared by Rabbi Kalman Kahana and published in the Tevet 5727 issue of <i>Ha-Ma'ayan</i> with a supplement in the Nisan 5727 issue of that periodical. This material together with additional references was reprinted in the Av 5734 issue of <i>Torah u-Mada</i>.
  The primary question, of course, centers upon the prohibition of <i>nivul ha-met</i>, or desecration of the dead. According to the position accepted by most rabbinic decisors, this prohibition is suspended in face of <i>pikuaḥ nefesh</i>, i.e., danger to life. However, as R. Ezekiel Landau, <i>Noda bi-Yehudah, Mahadurah Tinyana, Yoreh De'ah</i>, no. 210, declares, halakhic prescriptions are suspended for purposes of <i>pikuaḥ nefesh</i> only in face of imminent danger. Thus, an autopsy would be warranted in order to secure information useful in treating another patient afflicted by the same disease, but not simply for the purpose of advancement of scientific knowledge even though new information gained as a result of the autopsy might, at some future time, contribute to the cure of gravely ill patients. Both <i>Noda bi-Yehudah</i> and R. Moses Sofer, <i>Teshuvot Hatam Sofer, Yoreh De'ah</i>, no. 236, apply this principle to the question of the propriety of anatomical studies which medical students are required to undertake. On the basis of the principle formulated by <i>Noda bi-Yehudah</i>, both he and <i>Hatam Sofer</i> reject the contention that the study of medicine may be deemed to be encompassed within the category of <i>pikuaḥ nefesh</i>.1<i class="footnote">The arguments of R. Ben-Zion Uziel, <i>Mishpetei Uzi’el, Yoreh De‘ah</i> no. 28, sec. 2, were anticipated by <i>Noda bi-Yehudah</i> and <i>Ḥatam Sofer</i> and explicitly rejected by those authorities.</i> <i>Hatam Sofer</i> applies a <i>reductio ad absurdum</i> in declaring that, if violation of a corpse is permissible for purposes of the study of medicine, Sabbath restrictions must also be suspended for the same purpose. Equating the two, <i>Hatam Sofer</i> concludes that a medical student may not dissect a cadaver, just as he may not violate the Sabbath for the purpose of pursuing his studies.
  The question of whether or not the strictures against <i>nivul ha-met</i> apply in the case of a person who in his lifetime has willed his body to science or has granted consent for a post-mortem examination was discussed in <i>Contemporary Halakhic Problems</i>, I, 125-126.
  Rabbi Goren omits any discussion of what is, in terms of practical application, the most significant possible exception to this prohibition, viz., the question of whether the prohibition is limited to Jewish corpses or whether it encompasses non-Jewish cadavers as well. In reality, virtually all bodies made available to medical schools are those of non-Jews. Barring evidence to the contrary, application of the principle of <i>rov</i> (majority) establishes a halakhic determination that the body of unknown origin and religious identity is a member of the class to which the majority of all bodies belong. When the majority of all persons in the area from which the bodies are procured are non-Jews, any individual corpse is deemed to be that of a non-Jew.
  The Jewish <i>yishuv</i> faced this problem on a communal level for the first time with the establishment of the first medical school in what was then Palestine. The halakhic issue was submitted to the late Rabbi Abraham Isaac Kook for adjudication. In a brief responsum authored in 1931, <i>Da'at Kohen</i>, no. 199, Rabbi Kook sanctions use of non-Jewish cadavers without reservation. The primary issue which he addresses is the possibility of anti-Semitic repercussions as a result of adoption of such a policy. In order to obviate this objection he formulates the philosophical basis of the prohibition of <i>nivul ha-met</i> as a manifestation of the <i>kedushah</i> or sanctity which is unique to the Jew. Jews are forbidden to partake of various foods, not because they are deleterious to health, but by virtue of the unique holiness of the community of Israel. The duty to preserve inviolate the sanctity of the body, explains Rabbi Kook, is an obligation imposed solely upon Jews. He ventures the opinion that fair-minded gentiles will recognize that a people who have been subjected to unspeakable persecution because of their tenacity in adhering to the religious obligations imposed upon them are entitled to respect for their claim to the "privilege of sanctity" as well. Moreover, he adds, inveterate anti-Semites are not likely to undergo a change in attitude even if dissection of Jewish corpses were to be sanctioned.
  An opposing view is attributed to Rabbi Joseph Soloveitchik in an article written by Rabbi Immanuel Jakobovits, <i>Torah she-be-'al Peh</i>, VI (5724), 64. Rabbi Soloveitchik is quoted as stating that insofar as the prohibition concerning <i>nivul ha-met</i> is concerned, no distinction may be made between Jew and gentile. The prohibition is derived from the commandment not to allow the corpse of an executed transgressor to remain hanging overnight "for he that is hanged is a reproach unto God" (Deuteronomy 21:23). The prohibition, it is argued, applies equally to the bodies of both Jews and non-Jews because all men are created in the "image of God."
  However, <i>Tosefet Yom Tov, Avot</i> 3:14, declares that while all men are created in the "image," (<i>be-zelem</i>), i.e., with divine potential, non-Jews who do not fulfill God's commandments are not described as created "in the image of God" (<i>be-zelem Elokim</i>). Thus R. Akiva, in the Mishnah, speaks of man, meaning all mankind, as created "in the image," but does not speak of mankind as created "in the image of God." <i>Tosefet Yom Tov's</i> comments may perhaps best be understood in light of the statement found in <i>Baba Kamma</i> 38a concerning the diminished status of Noachides as a result of their renunciation of the Noachide Code.
  It may readily be inferred that <i>Hatam Sofer</i> also regards the prohibition concerning <i>nivul ha-met</i> as being limited to Jewish corpses. <i>Hatam Sofer</i> points to the difficulty posed by the narrative recorded in the Gemara, <i>Bekhorot</i> 45a. The Gemara relates that the disciples of Rabbi Ishmael, desiring to determine the number of organs in the human body, obtained the corpse of a harlot who had been executed by the civil authorities and boiled it in order to examine and count the organs. The conduct of these students seems to have been in violation of Jewish law. <i>Hatam Sofer</i> declares that no transgression was committed because the woman in question was a gentile. In the context of his discussion <i>Hatam Sofer</i> explicitly deduces only that there is no prohibition against deriving benefit from the corpse of a non-Jew. However, it must logically be inferred that the prohibition against <i>nivul ha-met</i> is also not operative, else the action of these students would have been prohibited on that account alone. Moreover, it is evident from the context of <i>Hatam Sofer</i>'s conclusion that he was of the opinion that the corpse of a non-Jew is excluded from the prohibition against <i>nivul ha-met</i> since, as any reader who checks the reference will observe, that prohibition is clearly mentioned in the sentence immediately preceding this conclusion.
  However, the Sephardic authority <i>Ben Ish Hai</i>, in his commentary on <i>Bekhorot, Ben Yehudah</i>, explains the incident concerning the students of Rabbi Ishmael in a way which negates the inference drawn by <i>Hatam Sofer</i>. <i>Ben Ish Hai</i> explains that, as part of her punishment, the civil authorities had ordered the boiling of the body of the executed woman. Hence, this narrative provides no basis for the inference that dissection of the corpse of a non-Jew is not forbidden.
  A detailed analysis of the question of whether or not the prohibition regarding <i>nivul ha-met</i> extends to gentile corpses is presented by Rabbi Meir Shapiro in his <i>Teshuvot Or ha-Me'ir</i>, no. 34. R. Meir Shapiro maintains that the issue is the subject of dispute between Rashi and Ramban in their respective commentaries on Deuteronomy 21:23.
  Rashi, commenting on the phrase "a reproach unto God" explains that the proscribed conduct is "a degradation of [the divine] King for man is made in His image and Israel are His children." Ramban takes issue with Rashi declaring him to be incorrect in limiting the reference "to Israel who are called children unto God." Ramban understands the verse, and hence the prohibition concerning <i>nivul ha-met</i>, as extending to all human corpses.
  <i>Or ha-Me'ir</i> seeks to adduce support for Rashi's position from a statement in the Palestinian Talmud, <i>Nazir</i> 7:1. There the focal point of discussion is whether or not it is incumbent upon a high priest to defile himself by attending to the interment of a <i>met mizvah</i> (a corpse which would otherwise remain unburied). On the basis of application of hermeneutical principles, the Palestinian Talmud seeks to demonstrate that all persons bound by the prohibition against blasphemy are also bound by the positive commandment concerning burial of a <i>met mizvah</i>. In the talmudic discussion a counter argument is presented, namely, that blasphemy is prohibited under the Noachide Code, yet burial of a <i>met mizvah</i> is not incumbent upon non-Jews. The talmudic discussion continues with a response to this objection. It is noted that the scriptural passage speaks of one who is hanged as being "a reproach unto God." The "reproach unto God" is understood by the Palestinian Talmud as constituting a form of blasphemy. It is then argued that inferences based upon the commonality between the commandments concerning blasphemy and burial are limited to provisions of Jewish law which apply to Jews. The verse in question is considered as referring only to Jews who may be executed by means of hanging but not to gentiles governed by the Noachide Code which provides only for execution "by the sword." The inference, argues <i>Or ha-Me'ir</i>, is that the bodies of non-Jews are excluded from the prohibition concerning <i>nivul ha-met</i>.
  In defense of Ramban's position it may be argued that the Palestinian Talmud does not necessarily exclude gentile corpses from this prohibition. The discussion in the Palestinian Talmud does not view the verse in question as concerning itself with the identity of the corpses which may not be defiled but rather with the persons who may not engage in acts of defilement. Understood this way, the verse is limited to those subject to execution by hanging, i.e., Jews, and demands of them, and of them alone, that they refrain from <i>nivul ha-met</i> whereas non-Jews are not forbidden to perform such acts. Indeed, there is no indication whatsoever that a non-Jew is forbidden to defile even the corpse of a Jew. It is a Jew who is forbidden to defile, or to permit the defilement of, a corpse. The prohibition directed to Jews forbidding them to defile a corpse may thus be seen as encompassing the desecration of a non-Jewish corpse as well.
  Study of Anatomy II: Observation
  It has been suggested that students unable to participate in anatomical dissection for religious reasons may be able to satisfy educational requirements by observing the dissection as it is performed by others.
  <i>Hatam Sofer</i>, in the earlier quoted responsum, observes that, quite apart from the prohibition concerning <i>nivul ha-met</i>, dissection of a corpse for purposes of tangible benefit is prohibited by virtue of the fact that the corpse is in the category of <i>issurei hana'ah</i>, i.e., objects from which no benefit may be derived, as indicated in <i>Avodah Zarah</i> 29b and Rambam, <i>Hilkhot Avel</i> 14:1. The earliest discussion of this point occurs in a responsum by R. Jacob Emden, <i>She'ilat Ya'avez</i>, I, no. 41, addressed to a student at the University of Göttingen who inquired whether he might dissect a dog on <i>Shabbat</i>. <i>Inter alia</i> R. Jacob Emden declares that dissection of both Jewish and non-Jewish cadavers is prohibited because it is forbidden to derive benefit from a corpse. <i>Hatam Sofer</i>, as noted earlier, disagrees and maintains that the prohibition against deriving benefit from a corpse is limited to benefit derived from the corpse of a Jew.
  In point of fact, the permissibility of deriving benefit from a non-Jewish cadaver is the subject of disagreement among early authorities. <i>Teshuvot Radbaz</i>, no. 741 and no. 979, declares that there is no prohibition against deriving benefit from the corpse of a non-Jew. This also appears to be the position of <i>Tosafot, Baba Kamma</i> 10a.2<i class="footnote">See, however, <i>Teshuvah me-Ahavah</i>, I, no. 47.</i> <i>Teshuvot ha-Rashba</i>, I, no. 365, followed by Shulḥan Arukh, Yoreh De'ah 349:1, maintains that the prohibition applies equally to the corpses of Jews and non-Jews.
  However, this position is contradicted by Rashba himself in his commentary on the Talmud in three different places: <i>Baba Kamma</i> 9b; <i>Baba Kamma</i> 53b; and <i>Shabbat</i> 94b. <i>Sedei Hemed</i>, vol. IX, s.v. <i>Divrei Hakhamim</i>, no. 52, opines that the commentary reflects Rashba's own opinion whereas the dicta in the responsum are intended only as an elucidation of the view espoused by the interlocutor. It is noteworthy that Bi'ur haGra, Yoreh De'ah 349:1, is among the authorities who maintain that the prohibition does not emcompass benefit derived from the corpse of a non-Jew.
  This question has been the subject of ongoing debate. There are numerous responsa authored by latter-day scholars which reflect conflicting opinions with regard to whether or not benefit may be derived from the corpse of a non-Jew. These authorities are cited in detail by Dr. Abraham S. Abraham in a contribution to <i>Ha-Ma'ayan</i>, Tishri 5741.
  It is clear that if anatomical dissection is forbidden by virtue of the fact that a corpse is <i>assur be-hana'ah</i>, the prohibition remains in effect even if a person were to give permission for such use prior to his demise. Prohibitions associated with <i>issurei hana'ah</i> are in the nature of commandments "between man and God" rather than "between man and his fellow." Hence, the prohibition against deriving benefit from a corpse cannot be waived by man.
  The argument that a corpse is <i>assur be-hana'ah</i> and that this consideration, in and of itself, constitutes sufficient grounds for banning anatomical dissection was first advanced by <i>Hatam Sofer</i>. The earlier responsa of <i>Noda bi-Yehudah</i> and <i>She'ilat Ya'avez</i> fail to take notice of this consideration. In an attempt to explain this omission, Rabbi Goren argues that the prohibition against deriving benefit from a corpse does not apply to benefit in the form of perfecting medical skills. In support of this contention he cites the ruling in <i>Nedarim</i> 35b stating that a person who has vowed not to be of benefit to his fellow may, nevertheless, teach him the Oral Law. The Gemara explains that since, normatively, compensation may not be demanded for teaching the Oral Law the benefit derived from the lesson is of no monetary value and hence is not forbidden. Similarly, Shulḥan Arukh, Yoreh De'ah 336:2, rules that since ministering to the sick is a <i>mizvah</i>, a physician may receive compensation from a patient only for time and effort expended but not for his "knowledge." Rabbi Goren declares that, by the same token, a physician is forbidden to accept fees for imparting medical knowledge to a student. Since payment need not be made for medical knowledge, argues Rabbi Goren, it is not forbidden to derive such knowledge from a corpse.
  This argument hinges upon the premise that imparting medical information to a student is comparable to treating a patient and that, just as a fee may not be accepted for the latter (other than as compensation for time and physical effort), it may not be accepted for the former. However, the two are not necessarily to be equated. <i>Sefer Hasidim</i>, no. 810, states, "A person should not teach Torah to his fellow in return for a fee; nor should he provide medical attention for a fee." <i>Sefer Hasidim</i> fails to state that one should not teach Torah <i>or medicine</i> to students for a fee. Although treating a patient is a <i>mizvah</i> for which one may not exact a fee, the <i>mizvah</i> is limited to treating a patient suffering from an illness. Transmission of medical knowledge to students, while highly commendable, is not a fulfillment of the <i>mizvah</i> associated with healing and hence there is no prohibition against exacting a fee for imparting such knowledge.3<i class="footnote">See R. Moses Feinstein, <i>No‘am</i>, VIII (5728), 9; R. Abraham Price, <i>Sefer Ḥasidim im Mishnat Avraham</i>, II, 132; and R. David Bleich, <i>Judaism and Healing</i> (New York, 1981), pp. 11-17.</i>
  There are, however, authorities who disagree with <i>Hatam Sofer</i>'s position on entirely different grounds. R. Chaim Sofer, <i>Teshuvot Maḥaneh Hayyim, Yoreh De'ah</i>, II, no. 60, distinguishes between benefits derived directly from a corpse, e.g., use of tissue for medicinal purposes, and benefit which is derived from mere examination. Anatomical examination is, in itself, of no benefit whatsoever. For the trained student anatomical examination will serve as a catalyst enabling him to utilize his rational faculty in the development of knowledge. Such indirect benefit, argues <i>Maḥaneh Hayyim</i>, is not forbidden. This argument is cited and accepted by R. Joseph ha-Levi Zweig, <i>Teshuvot Porat Yosef, Yoreh De'ah</i>, no. 17. A similar distinction between direct and indirect benefit is drawn by Rashba in his commentary on <i>Sukkah</i> 31b and by <i>Sha'ar ha-Melekh, Hilkhot Lulav</i> 8:1. This position is also espoused by R. Zevi Pesach Frank, <i>Teshuvot Har Ẓevi, Yoreh De'ah</i>, no. 278.
  However, <i>Teshuvot Maharam Schick, Yoreh De'ah</i>, no. 344, finds support for the position espoused by <i>Hatam Sofer</i> in a ruling of the Mishnah, <i>Nedarim</i> 48a. The Mishnah rules that persons who mutually vow not to be of benefit to one another may not use books which are public property and owned in common by the townspeople. Books are used for purposes of acquiring knowledge by means of "observation." Nevertheless, such use constitutes a forbidden type of benefit. Similarly, argues <i>Maharam Schick</i>, study of medicine by means of anatomical dissection of a corpse also constitutes a forbidden benefit. This is also the conclusion reached by R. Jacob Breisch, <i>Teshuvot Helkat Ya'akov</i>, I, no. 84.4<i class="footnote">See also R. Mordecai Leib Winkler, <i>Teshuvot Levushei Mordekhai, Oraḥ Ḥayyim</i>, III, no. 29, and R. Yitzchak Ariel, <i>Torah she-be-‘al Peh</i>, VI (5724), 49.</i>
  Without taking note of <i>Maharam Schick</i>'s argument, <i>Hazon Ish, Yoreh De'ah</i> 208:8, declares that "perhaps" mere observation (<i>re'iyah</i>) does not constitute a prohibited form of benefit. This, he argues, may be deduced from the previously cited narrative recorded in <i>Bekhorot</i> 45a. The students of Rabbi Ishmael, desiring to determine the number of organs in the human body examined the corpse of a woman executed by the civil authorities. In doing so they acquired knowledge which they previously lacked. Since many authorities rule that benefit may not be derived even from a non-Jewish corpse, <i>Hazon Ish</i> argues that it may be inferred from this source that acquisition of knowledge in this manner does not constitute a forbidden benefit. However, both Rabbi Goren and Dr. Abraham S. Abraham argue that determination of the number of organs contained in the human body was necessary in order to establish a point of Halakhah. Hence, the examination constituted an act of Torah study. As has been noted earlier, Torah study is not deemed to be a "benefit." Therefore, although it is forbidden to derive benefit from a corpse, Torah knowledge may be derived from it.
  In a note appended to Dr. Abraham's article, Rabbi Shlomoh Zalman Auerbach points out that R. Ishmael and his students were among the contributors to the Mishnah. The question of whether fulfillment of a <i>mizvah</i> constitutes a "benefit" is a matter of controversy among the Amora'im of a later period. The implication of this historical point is that there is no clear evidence of an established tannaitic tradition with regard to this question of law. He is therefore constrained to advance an alternate explanation for the conduct of R. Ishmael's disciples. Rabbi Auerbach argues that, while it may be forbidden to receive "ordinary" benefit even from a non-Jewish cadaver, benefit which is "unusual" in nature is forbidden only with regard to Jewish bodies which require burial. The counting of organs (and, arguably, the knowledge derived from anatomical dissection as well) is "unusual" in nature and hence, in the opinion of Rabbi Auerbach, it is entirely permissible to derive such knowledge from non-Jewish corpses.
  Pituitary Dwarfism
  Fortunately, pituitary growth hormone (HGH) insufficiency is a relatively rare occurrence. It is believed to occur in roughly one out of every 30,000 births. Approximately 150 to 200 children suffering from this insufficiency are born annually in the United States. In Israel, at present, there are over 100 children affected by this condition. Deficiency in the pituitary growth hormone results in dwarfism. Approximately 10 percent of the children who suffer from HGH deficiency also experience episodes of hypoglycemia. Some may not experience normal sexual development. Untreated HGH-deficient dwarfs are frequently psychologically immature, hypoactive, and often suffer from emotional and psychological problems.
  A satisfactory growth rate in such children can be achieved by treating them with human growth hormone extracted from the pituitary glands of cadavers. Because of the small size of the pituitary, approximately 25 pituitary glands per year are required in order to extract a quantity of HGH sufficient for the treatment of a single patient.5<i class="footnote">See Salvatore Raiti, “Endocrine Causes of Short Stature,” <i>Postgraduate Medicine</i>, vol. 62, no. 6 (Dec. 1977), p. 84.</i> In this country the pituitary hormone is collected and distributed by the National Pituitary Agency and is also available from commercial sources, but it remains in short supply. However, the prognosis for properly treated patients is good. Most patients can be expected to attain heights in excess of five feet.
  The permissibility of removing the pituitary gland from a cadaver and using the HGH extracted from the cadaver gland is discussed by Rabbi David Applebaum in a contribution to a recently published symposium, <i>Halakhah u-Refu'ah</i>. This volume was published under the editorship of Rabbi Moshe Hershler by the newly established Regensberg Institute for the Study of Halakhah and Medical Halakhic Problems. Procurement and use of HGH involve two halakhic problems: (1) violation of the corpse in conjunction with removal of the pituitary gland and (2) the question of <i>issur hana'ah</i>, the prohibition against deriving benefit from a corpse.
  Of course, were it possible to establish that dwarfism resulting from HGH deficiency jeopardizes the life of the person so afflicted, the prohibition against violation of the corpse (<i>nivul ha-met</i>) would be suspended in order to eliminate the danger. Mortality tables for persons afflicted with dwarfism are, however, not available, and there is no available evidence to support a finding of decreased life expectancy. Hypoglycemia, which is associated with this form of dwarfism, is not believed to be life threatening when properly treated. Rabbi Applebaum states that dwarfs have a tendency to develop diabetes yet, surprisingly, he hesitates to declare dwarfism to be a life-endangering condition because of that consideration. In light of the well established diminished life expectancy of diabetics, it would seem that if diabetes were known to be associated with dwarfism, that fact, in itself, would be sufficient to place HGH deficiency in the category of a "dangerous illness" (<i>ḥoli she-yesh bo sakanah</i>). However, the medical literature in fact indicates that, quite to the contrary, "longstanding HGH insufficiency protects against… a clinical state that metabolically resembles diabetes mellitus," although the mechanism of this deterrent effect is not yet understood.6<i class="footnote">See Nicholas P. Christy and Michelle P. Warren, “Disease Syndromes of Hypothalamus and Anterior Pituitary,” <i>Endocrinology</i>, edited by Leslie J. DeGroot et al. (New York, 1979), I, 235.</i>
  Although dwarfism does not seem to be a condition which presents a threat to life, correction or prevention of dwarfism may nevertheless warrant suspension of certain biblical prohibitions. Rabbi Applebaum cites <i>Shakh, Yoreh De'ah</i> 157:3, as understood by <i>Pri Megadim, Mishbezot Zahav, Oraḥ Hayyim</i> 328:7, who rules that, with the exception of <i>Shabbat</i> restrictions, biblical prescriptions are suspended in face of danger of the loss or permanent malfunction of a limb or organ (<i>sakanat ever</i>). The danger of infertility which is associated with dwarfism would constitute danger to an organ. Nevertheless, rabbinic scholars who have earlier written on matters such as corneal transplants have not sanctioned such procedures on these grounds. Moreover, it is doubtful whether infertility occurs with any degree of frequency in cases of dwarfism attributable to HGH insufficiency. One endocrinologist states flatly, "Except for growth failure growth hormone deficiency produces few signs or symptoms."7<i class="footnote">See John D. Bailey, “Hormones &amp; Growth,” <i>Systematic Endocrinology</i>, 2nd ed., edited by Calvin Egrin, John O. Godden, and Robert Volpe (New York, 1979), p. 530.</i> Lack of sexual development, when it occurs, is presumably due to other endocrine imbalances and is correctable by means of hormone treatment.
  Rabbi Applebaum further suggests that the cadaver pituitary may be removed by employing a procedure which does not violate the prohibition against desecration of the corpse. It is possible to remove the pituitary by entering the skull through the nostril. This procedure would leave no external sign of violation of the corpse. It may be argued that the prohibition against desecration of the corpse applies only if the corpse is violated in a manner which renders it repugnant in the eyes of a beholder. This argument is employed by R. Iser Yedudah Unterman, <i>Kol Torah</i>, Nisan-Iyar 5715 and <i>Shevet me-Yehudah</i>, pp. 320-321, in permitting removal of a cornea from the eye of a corpse for the purpose of a corneal transplant. Rabbi Unterman, who erroneously assumed that only the cornea was removed from the corpse, but not the eye itself,8<i class="footnote">See <i>No‘am</i>. III (5720), p. 91. At present, removal of the entire eye is no longer necessary.</i> argues <i>inter alia</i> that, since the eyes of the deceased are closed, it is impossible to discern the absence of the cornea and hence the prohibition of <i>nivul ha-met</i> does not apply. In a more limited manner, Rabbi Moses Feinstein, <i>No'am</i>, VIII (5728), pp. 9-16, sanctions postmortem needle biopsies which do not involve an incision into the body. Similarly, argues Rabbi Applebaum, removal of the pituitary through the nostril would leave no mark on the body and, hence, should not be construed as a form of <i>nivul ha-met</i>.
  Against Rabbi Applebaum's thesis it may be argued that even if it is accepted that a postmortem needle biopsy and/or removal of a cornea do not constitute <i>nivul ha-met</i>, entry into the cranium and removal of the pituitary gland, even if not externally noticeable after completion of the procedure, would indeed constitute a form of <i>nivul ha-met</i>. If Rabbi Applebaum's argument were to be accepted, it would lead to an even more radical conclusion. Although such postmortem procedures are performed only rarely, pathology textbooks describe in detail a procedure for a vaginal autopsy that enables removal of all internal organs through the vagina without leaving an external mark on the body. It would appear that this procedure certainly involves an impermissible violation of the corpse. Granting, <i>arguendo</i>, that <i>nivul ha-met</i> is not simply any assault or violation of the integrity of the corpse but is limited to a procedure which causes repugnance in the beholder, such a procedure is rendered impermissible not only when repugnance is associated with viewing the corpse subsequent to completion of the procedure but also if the procedure causes repugnance in the eyes of the beholder during the course of its performance. Arguably, no such repugnance occurs during the course of a needle biopsy, or perhaps even in removing a cornea, but it certainly would occur during the course of removal of viscera through the vagina. By the same token, similar repugnance would occur in removing the pituitary gland through the nose.
  The second problem addressed by Rabbi Applebaum is that of the prohibition against deriving benefit from a corpse. This question is quite independent of the first question concerning the permissibility of removing the pituitary from the cadaver. The impermissibility of that procedure would not in itself preclude use of the pituitary extract <i>post factum</i>.
  R. Jacob Emden, <i>She'ilat Ya'avez</i>, I, no. 41, and apparently <i>Mishneh le-Melekh, Hilkhot Avel</i> 14:22, maintain that the prohibition against deriving benefit from a corpse is rabbinic, not biblical, in nature. If so, the use of pituitary extract would not be forbidden on this account. Rema, <i>Yoreh De'ah</i> 155:3, rules that materials from which benefit is prohibited by virtue of rabbinic edict may be utilized on behalf of any sick person even if the patient is not in danger. The majority of rabbinic decisors, however, maintain that deriving benefit from a corpse involves a biblical infraction. Some maintain that even materials from which it is biblically forbidden to derive benefit may be used by a sick person in an "unusual" or "nonnatural" way (<i>she-lo ke-derekh hana'ah</i>), since only "usual" or "natural" benefit is biblically forbidden. However, R. Akiva Eger, <i>Yoreh De'ah</i> 349:1, rules that in the absence of a threat to life, a sick person may not derive benefit from a corpse even in an unusual manner. Some authorities permit benefit to be derived from a corpse provided that the tissue utilized is less than the size of an olive. <i>Mishneh le-Melekh, Hilkhot Avel</i> 14:22 cites conflicting authorities with regard to whether or not it is permissible to derive benefit from the corpse of a non-Jew.
  The prohibition against deriving benefit from a corpse may not apply to the use of pituitary hormone for other reasons, argues Rabbi Applebaum. <i>Teshuvot Maḥaneh Hayyim</i>, II, <i>Yoreh De'ah</i>, no. 60, permits an epileptic to use a medicament if administered in a compound mixed with the bones of kosher animals. Similarly, the pituitary extract would be permissible, according to this opinion, when mixed with other chemicals obtained from sources which are entirely permissible. A second argument which may be advanced is that, in contradistinction to other medicines which have a direct effect, growth hormones do not cause growth in and of themselves but, instead, enable nutrients to be metabolized in a way that enables growth to occur. Hence the desired benefit is obtained not from the pituitary extract alone but from the hormone in conjunction with nutrients. Materials from which benefit may not be derived may be utilized if the resultant benefit is derived only in conjunction with utilization of another permissible material (<i>zeh ve-zeh gorem</i>).
  Fortunately, these questions may soon become academic. Research currently in progress involving experimentation with recombinant DNA shows particular promise for the development of pharmaceutical drugs. It is reported that several hormones, including pituitary growth hormone, have already been duplicated and now await further testing before being placed on the market.9<i class="footnote">See David V. Goeddel et al., “Direct Expression in <i>Escherichia Coli</i> of a DNA Sequence Coding for Human Growth Hormone,” <i>Nature</i>, Vol. 281, no. 5732 (October 18, 1979), pp. 544-548.</i> Hopefully, the use of synthetic HGH will serve to obviate both medical and halakhic problems.
  Physicians' Fees
  The physician's right to some form of compensation is clearly evident from the discussion recorded in <i>Baba Kamma</i> 85a. A person who has caused physical harm to another is obligated to bear the expenses of medical treatment of the victim. The assailant does not have the option of offering the ministration of a physician who will not demand a fee for his services for the victim may counter, "A physician who heals for nothing is worth nothing." A survey of halakhic sources which define the limits placed upon the fee a physician may charge for his services is presented by R. Chaim David Halevi, the Sephardic Chief Rabbi of Tel Aviv, in the Kislev 5737 issue of <i>Shevilin</i>. This material appears to be based in large measure upon Rabbi Eliezer Waldenberg's discussion of the same topic in his <i>Ramat Raḥel</i>, nos. 24 and 25.
  Rambam, in his <i>Commentary on the Mishnah, Nedarim</i> 4:4, and in <i>Hilkhot Nedarim</i> 6:8, declares that the obligation to heal is encompassed within the <i>mizvah</i> of returning lost property. Restoration of life and health is no less a <i>mizvah</i> than is restoration of property. It should then follow, <i>mutatis mutandis</i>, that just as one may not accept a fee or reward for returning a lost object so also is it forbidden to accept a fee for rendering medical services. The general principle is that one may not accept a fee for the performance of a <i>mizvah</i>. Nevertheless, some forms of compensation are justified even for the performance of a <i>mizvah</i>. With regard to lost property, the <i>Mishnah, Bekhorot</i> 29a, states that a finder who neglects his own labor in order to preserve the property of another is entitled to compensation for loss of earnings. However, the compensation to which he is entitled is not to the full extent of loss of earnings, but is limited to payment as an "idle worker" (<i>po'el batel</i>), i.e., the amount a worker would accept in return for sitting idle and not engaging in his usual labor. It is presumed that a laborer would prefer not to work and to receive somewhat lower remuneration rather than to work and to receive his usual wage. Although compensation for the actual performance of a <i>mizvah</i> is limited to payment as an "idle worker" for the time expended, compensation may also be accepted for labor performed or services rendered in preparing artifacts to be used in performance of a <i>mizvah</i>. The Gemara, <i>Berakhot</i> 29a, declares that although one may not accept a fee for performing the ritual of purification it is nevertheless permitted to accept compensation for the labor involved in transporting the ashes of the red heifer and in drawing water for this purpose.
  Ramban, in his <i>Torat ha-Adam</i>, in the concluding section of <i>Sha'ar ha-Sakanah</i>, applies these principles to the remuneration of a physician and rules that a physician is permitted to accept compensation for his labor and for the time in which he could otherwise have been gainfully employed, but is not entitled to compensation for his "wisdom" or for his "instruction" in advising the patient how to restore himself to good health. Applying this principle, <i>Arukh ha-Shulḥan, Yoreh De'ah</i> 336:3, rules that a physician may not accept a fee for proffering medical advice but may demand a fee for his labor and exertion in visiting a patient or in writing a prescription. Rabbi Eliezer Waldenberg, <i>Ramat Raḥel</i>, no. 24, adds that a physician may accept a fee for the labor involved in conducting a physical examination even if the examination is performed in his office, but not for simply offering medical advice since (usually) the time expended in merely offering advice is minimal. A fee for the effort involved in examining the patient is permissible since the examination is merely preparatory to therapy. The <i>mizvah</i> itself is fulfilled only in providing treatment and offering medical advice. In light of this distinction Rabbi Waldenberg questions <i>Arukh ha-Shulḥan</i>'s statement that the physician may accept a fee for writing a prescription since, he argues, the writing of a prescription involves no significant expenditure of time or effort, and is, in fact, no different from offering advice orally.
  The compensation of an "idle worker" is calculated in terms of the type of labor which the worker ordinarily performs. A person who earns a living by means of heavy labor is deemed to be willing to accept a significantly lower wage if he is permitted to remain idle, whereas one who "pierces pearls" would be willing to accept only a smaller reduction in his earning capacity. It is therefore relatively simple to calculate the value of a person who is regularly employed in a craft or trade and does not devote his time entirely to the practice of medicine. In such circumstances, it is possible to calculate the value of the person's time and to determine the amount he would willingly accept not to engage in his particular occupation.10<i class="footnote">For other opinions regarding the assessment of the value of the time of an “idle worker” see Rashi and <i>Tosafot, Bekhorot</i> 29b.</i> However, in modern times, physicians customarily devote themselves exclusively to the practice of medicine. How, then, is the value of the physician's time to be calculated? Rabbi Halevi suggests that a parallel may be drawn from the principle established with regard to teachers of Torah. <i>Tur Shulḥan Arukh, Yoreh De'ah</i> 246, rules that such teachers may accept a salary since they have foresaken all other means of earning a livelihood. Similarly, he argues, physicians who might have applied their talents in pursuing some other profession are entitled to receive compensation for having renounced such occupations. The total income a physician might have anticipated in practicing some other profession minus the amount he would be willing to forego not to have to engage in any profession may be deemed the compensation to which the physician is entitled as an "idle worker" and may thus be apportioned among the physician's patients. Accordingly, the general practitioner and the neurosurgeon, assuming they are capable of earning identical salaries in other professions, are entitled to equal annual compensation, the total sum to be apportioned among their respective patients in accordance with the time spent with each patient.
  However, <i>Tosafot, Ketubot</i> 105a, states that teachers of Torah who have no other occupation may not receive compensation as "idle workers" since they have no other trade, but the community is nevertheless obligated to support them since they have no means of earning a livelihood. According to <i>Tosafot</i> the compensation to which Torah teachers are entitled is, in effect, a form of charity. Undoubtedly, the community would have a similar obligation with regard to the support of a physician who has no other means of earning a livelihood. However, Rabbi Halevi fails to note that, according to this analysis, it would appear that a physician could not legitimately command the type of fee to which he would be entitled according to the thesis of the <i>Tur</i>. However, even according to the <i>Tur</i>, a physician is not entitled to demand compensation in excess of the amount he would be capable of earning in another profession.
  The physician is obviously entitled to recover the expenses he incurs in conjunction with his practice by apportioning those costs among the patients whom he treats. <i>Teshuvot Maharam Schick, Yoreh De'ah</i>, no. 343, rules that the physician may also legitimately charge a fee for services which are non-therapeutic in nature such as pronouncing death and signing a death certificate. <i>Maharam Schick</i> does, however, raise a problem with regard to accepting compensation for pronouncing death and signing a death certificate on other, although similar, grounds. By reason of civil law it is necessary for a physician to pronounce a patient dead and to sign a death certificate in order for burial to take place. Hence the physician's services are intrinsic to fulfillment of the <i>mizvah</i> of burying the dead, which encompasses all matters necessary to facilitate timely and dignified interment of the deceased. Nevertheless, rules <i>Maharam Schick</i>, a fee is justified for precisely the same reasons which warrant a fee for rendering therapeutic services. It would appear, however, that a physician is fully entitled to establish a fee for filling out insurance forms and the like without regard to the considerations earlier outlined since such services are not related to the cure of the patient.
  It would also appear that physicians who have busy practices and therefore turn away patients because of pressures of time have a ready means of calculating <i>sekhar batalah</i>. If, as is generally the case, they might accept additional non-Jewish patients, their time may be valued in terms of the fees they might charge non-Jewish patients. Non-Jews recognize neither a legal nor a moral obligation which obliges a physician to treat those in need of his services. This is reflected in the code of ethics of the American Medical Association which specifies that a physician may choose whom he shall treat. Concomitantly, Jewish law places no restriction upon the fee which may be charged a non-Jewish patient. Since there is no restriction upon the fee which physicians may charge non-Jewish patients, it would appear that they may then charge their Jewish patients the amount they would be willing to accept in order to remain "idle" and treat no patients during that time. A physician who commands high fees is likely to be willing to accept a sum only moderately less than his customary fee in order to remain idle and to forego such income-producing opportunities, as indeed is the case with regard to the artisan engaged in "piercing pearls."
  Thus far the question revolves around the physician's obligation to heal and the limits placed upon the compensation he may justifiably demand in return for his services. If, however, as a condition of treatment, the physician demands a fee in excess of that to which he is morally entitled, is the patient subsequently obligated to pay the fee in full?
  The paradigm applicable to the resolution of this question is the case discussed by the Gemara, <i>Yevamot</i> 106a, involving an escaping prisoner who finds it necessary to traverse a river in order to make good his escape. Even if the escapee has promised a ferryman an exorbitant sum in order to transport him over the river he need pay only the fee which is usual and customary for such services on the plea that "I was but making sport of you" in promising an exorbitant fee, i.e., the obligation is not binding because of the absence of seriousness of intent. All authorities agree that an apothecary who demands an exorbitant price for a drug has no actionable claim for an amount in excess of the item's fair market value since it is obvious that the patient's acquiescence to payment of a higher sum was secured under duress. This ruling is recorded in Shulḥan Arukh, Yoreh De'ah 336:3.
  Ramban, loc. cit., whose opinion is followed by Shulḥan Arukh, Yoreh De'ah 336:2, distinguishes between the case of the physician who demands an exorbitant fee and that of the apothecary who engages in price-gouging and the case of the boatman who demands inordinately high wages. The latter, declares Ramban, have set and determined values whereas the physician, although he has acted unethically, "has sold his wisdom and [his wisdom] is priceless." Therefore, the patient may not claim that, in agreeing to the fee stipulated by the physician, he was merely "making sport." Accordingly, the physician has a cause of action for the collection of any fee which has been agreed upon.
  Ritva, cited by <i>Nemukei Yosef, Yevamot</i> 106a, adopts an opposing view. Ritva maintains that, despite his explicit undertaking to pay a stipulated fee the patient need pay only for the time and labor expended by the doctor since the physician is obligated to treat the patient by virtue of the <i>mizvah</i> incumbent upon him. Ritva, as his position is interpreted by Ramban, apparently understands that the ferryman who is the subject of discussion in <i>Yevamot</i> 106a has no claim for exorbitant compensation, even though such compensation has been stipulated by the parties, for the identical reason. The ferryman, in preserving the life of the escaped prisoner, is also engaged in restoring a "lost body." The rejoinder "I was making sport of you," according to this analysis, is based, not upon the claim of duress, but upon the premise that the boatman cannot demand more than payment for time and labor since he is bound to render service by virtue of the <i>mizvah</i> incumbent upon him. Thus, according to Ritva, there is no consideration and hence no concomitant seriousness of intent which would serve to establish a binding contract.11<i class="footnote">This explanation serves to dispel the difficulty expressed by Rabbi Charles B. Chavel, <i>Kitvei Ramban</i>, II, 45, note 84.</i> Ritva's opinion is, however, rejected by all subsequent authorities. Indeed, Ritva himself, in his commentary on <i>Kiddushin</i> 8a, agrees with Ramban.
  Nevertheless, it appears from Ramban's discussion of the position subsequently espoused by Ritva that he concedes the basic point, viz., that an agreement to pay for services which, absent such agreement, are already incumbent upon the individual is not actionable. Ramban's disagreement with this position appears to be based entirely upon the contention that the physician may claim that he has no personal obligation to treat the patient. The <i>mizvah</i>, in the words of Ramban, "is incumbent upon the entire world" and therefore an individual physician has the legal capacity to enter into a binding contract for payment in return for his professional services. Hence <i>Teshuvot Radbaz</i>, III, no. 556, declares that in a situation in which no other physician is available or in which "there is no physician as expert as he, it appears to me that even Ramban concedes" that the physician's claim is limited to payment for time expended as an "idle worker." Rema's language, <i>Yoreh De'ah</i> 336:4, readily lends itself to a similar inference.
  Nevertheless, Rabbi Waldenberg, <i>Ramat Raḥel</i>, no. 25, argues that the physician's claim is actionable even under such circumstances. Rabbi Waldenberg argues that since, at present, physicians customarily—albeit unethically—charge high fees, the patient can no longer claim, "I was making sport of you." If, however, the analysis of Ramban presented earlier is correct Rabbi Waldenberg's conclusion is unwarranted. If Ramban is understood as agreeing that there can be no binding contract for payment of services which are already incumbent upon the individual it then follows that the patient is not obligated to pay such fees when no other equally competent physician is available.
  One final consideration must be mentioned. R. Menachem ben Zeraḥ, in a work composed on behalf of Isaac Abarbanel, <i>Ẓedah la-Derekh</i>, Fifth Treatise, <i>klal</i> 2, chapter 2, presents a very practical consideration which augurs in favor of paying any fee which has been agreed upon. This authority advises that the physician's fees be paid in full "for if not, you have closed the door before [other] patients," i.e., physicians may decline to treat other patients in the future.
  R. Eliezer Fleckeles, <i>Teshuvah me-Ahavah</i>, III, no. 408, rules that a physician must treat the poor, who cannot afford even the permitted payment for time and effort, entirely without charge. In support of this position he cites Rema, <i>Yoreh De'ah</i> 261:1, who rules that if a father cannot afford the <i>mohel</i>'s fee, the <i>Bet Din</i> may compel the <i>mohel</i> to render his services without a fee. Rema explains this ruling by stating that such a case is comparable to the situation of a child who has no father. In such circumstances the members of the <i>Bet Din</i> are themselves obligated to perform the circumcision. Although it is not entirely clear that this consideration applies with regard to treatment of the sick, R. Elijah of Vilna, Bi'ur haGra, Yoreh De'ah 261:7, amplifies Rema's statement in a manner which makes it readily applicable to treatment of the sick as well. <i>Bi'ur ha-Gra</i> explains that in the father's absence the <i>mizvah</i> of circumcision is actually incumbent upon each and every Jew and that the <i>Bet Din</i> act merely to enforce fulfillment of the personal obligation incumbent upon the <i>mohel</i>.12<i class="footnote">Cf., <i>Ramat Raḥel</i>, no. 24, sec. 3.</i> This consideration certainly applies to treatment of the sick as well. Rabbi Waldenberg, <i>Ramat Raḥel</i>, no. 24, sec. 4, draws attention to the source of this ruling, <i>Teshuvot ha-Rashba</i>, I, no. 472, in which Rashba rules that in such circumstances the father has no obligation to seek charity in order to provide for the <i>mohel</i>'s fee. Similarly, rules Rabbi Waldenberg, neither the patient nor the community is obligated to raise funds for payment of the physician's fee for the treatment of an indigent patient. Rather, if the patient lacks personal resources the physician may be compelled to treat him without charge. Rabbi Waldenberg, however, points out that, as has been noted earlier, when there is more than one <i>mohel</i> or physician available each one may claim that he is under no personal obligation to render his services without fee. Each <i>mohel</i> or physician may, in such circumstances, plead that he is under no greater obligation than his fellow. Under such circumstances, concludes Rabbi Waldenberg, the community must either make charitable funds available for this purpose or else the <i>Bet Din</i> may obviate this disclaimer on the part of the <i>mohel</i> or physician by apportioning the burden among the available practitioners in an equitable manner.
  Professional Secrecy
  Judaism places stringent restrictions upon disclosure of confidential information regardless of whether the information is received in the course of a professional relationship, a secret non-professional communication, as the result of an inadvertent or accidental disclosure, or through a third party.
  The prohibition against divulging personal information concerning another person is derived from the biblical verse "Thou shalt not go as a bearer of tales among your people" (Leviticus 19:16). Such activity is forbidden even when it is not accompanied by malicious intent and even if the information is not derogatory in nature. As formulated by Maimonides, <i>Mishneh Torah, Hilkhot De'ot</i> 7:2, "Who is a tale-bearer? One who carries reports and goes from one person to another and says, 'So-and-so said this' or 'Such and such have I heard about so-and-so.' Even if he tells the truth, [the tale-bearer] destroys the world.13<i class="footnote">Although not in the category of talebearing and hence not the object of a negative commandment, the Gemara, <i>Yoma</i> 4b, declares disclosure of even a non-personal communication to be improper unless prior permission has been granted for such disclosure. See also commentary of <i>Oraḥ Ḥayyim</i> on Ex. 25:2. <i>Sefer Miẓvot Gadol, lavin</i>, no. 9, interprets <i>Yoma</i> 4b as establishing a negative prohibition (interpreting the word <i>“lamor”</i> as <i>“lo emor”</i>) forbidding disclosure of such information; see, however, <i>Torah Temimah</i>, Lev. 1:1, who understands <i>Sefer Miẓvot Gadol</i> as positing a rabbinic rather than a biblical prohibition. Cf., <i>Bet ha-Beḥirah, Yoma</i> 4b, who describes the stricture against disclosure of a non-personal communication which has not been imparted in a confidential manner as a matter of <i>derekh ereẓ</i> or seemly behavior.</i>
  Despite this stricture against disclosure of confidential information, which results in a moral code even more restrictive in some respects than presently accepted canons of professional confidentiality, Jewish law acknowledges that in certain circumstances even professional confidences must be revealed.
  The position of Halakhah with regard to disclosure of professional confidences is examined by Rabbi Shiloh Raphael in the Av 5738 issue of <i>Assia</i>. Earlier discussions of the topic include those of Rabbi Ya'akov Breisch, <i>Helkat Ya'akov</i>, III, no. 136, Rabbi Baruch Rakover, <i>No'am</i>, vol. II, and Rabbi Eliezer Waldenberg in his most recent volume, <i>Ẓiz Eli'ezer</i>, XIII, no. 81. The earliest source which presents a detailed discussion of the principles governing disclosure of medical information is <i>Hafez Hayyim</i>, the classic text authored by R. Israel Meir Kagan dealing with Jewish law as it applies to slander, defamation of character, talebearing and the like.
  The particular situation discussed in <i>Hafez Hayyim, Hilkhot Rekhilut, klal</i> 9, is that of a person seeking disclosure of medical information concerning a prospective marriage partner. <i>Hafez Hayyim</i> rules that, in principle, such information may be divulged. Disclosure is, however, restricted in the following four ways: (1) The presence of a disease or physical defect may be disclosed. However, a vague, general weakness or deficiency which does not immediately compromise health may not be disclosed. (2) The nature or extent of a disease or injury must not be exaggerated in any way. (3) The sole motivation prompting disclosure must be the benefit of the person to whom the information is supplied. No disclosure may be made when prompted, even in part, by personal animosity. (4) Disclosure is permissible only when there exist reasonable grounds for assuming that the information divulged will be the determining factor in terms of the contemplated marriage. Such information may not be divulged if there is no reason to assume that the ultimate decision will be affected thereby.
  These provisions of Jewish law apply not only to disclosure of information with regard to a prospective marriage partner, but, <i>mutatis mutandis</i>, are applicable with regard to disclosure of information to a prospective employer as well. It is quite evident that these provisions of Halakhah reflect a balance between considerations of privacy and considerations of potential harm or damage which may accrue to another party. No person has the right to divulge information of a personal nature concerning a fellow man simply to satisfy the curiosity of a third party. By the same token, such information may not legitimately be disclosed simply in order to make a dossier complete. The crucial consideration is the "need to know" in the sense of avoiding potential harm. It follows, therefore, that, for example, information which has no bearing upon job performance may not be revealed. Since the information in question is not necessary to prevent harm or financial loss the privacy of such information may not be violated.
  Respect for privacy and the inviolability of the professional relationship certainly do not take precedence over protection of the lives and safety of others. The overriding obligation to protect the lives of others is of sufficient weight to oblige the physician to take whatever measures may be necessary to eliminate the danger. Thus, for example, a physician must inform the motor vehicle bureau that his patient is an epileptic and should be denied a driver's license. The obligation to violate the confidential nature of the physician-patient relationship in such extreme situations is included within the "law of pursuit." A person engaged in an act which will lead to the death of another must be prevented from causing such death even if the act is entirely unintentional. R. Elijah of Vilna, <i>Bi'ur ha-Gra, Hoshen Mishpat</i> 425:10, states explicitly that the "law of pursuit" applies even in the absence of intention to do harm.
  Rabbi Breisch argues that it is not merely permissible but obligatory to reveal information designed to avert personal tragedy or financial loss. Maimonides, <i>Mishneh Torah, Hilkhot Rozeaḥ</i> 1:13, followed by Shulḥan Arukh, Hoshen Mishpat 426:1 rules that if an individual "hears that gentiles or apostates are plotting misfortune" for another person, he must bring the matter to that person's attention. Failure to do so, declares Maimonides, constitutes a violation of the commandment "You shall not stand idly by the blood of your fellow" (Leviticus 19:16). <i>Hafez Hayyim, Be'er Mayim Hayyim, Hilkhot Issurei Rekhilut</i> 9:1, demonstrates that this admonition applies not only to preservation of the life of another person but also to preservation of money or property.
  Rabbi Breisch argues that disclosure under such circumstances is mandated, at least according to some authorities, by virtue of another commandment as well. "Thou shalt not place a stumbling block before the blind" (Leviticus 19:14) is understood in rabbinic sources as prohibiting an individual from causing another person to "stumble" by committing a transgression and also prohibits giving detrimental advice in mundane matters. Maimonides, <i>Mishneh Torah, Hilkhot Rozeaḥ</i> 12:4, extends the concept not only to providing direct aid in committing a sin but also to "strengthening the hands of transgressors." R. Judah Rozanes, <i>Mishneh le-Melekh, Hilkhot Kelayim</i> 1:6, maintains that even a passive stance may constitute "strengthening the hands of transgressors" and hence is forbidden by Maimonides as a "stumbling block before the blind." <i>Mishneh le-Melekh</i> employs this thesis in explaining an otherwise difficult ruling of Maimonides. Maimonides rules that a Jew may not permit a gentile to utilize a tree belonging to a Jew for purposes of grafting a branch of one species to another. Even passive acquiescence constitutes a violation of the prohibition against "placing a stumbling block."14<i class="footnote">This is also the view of <i>Bi’ur ha-Gra, Yoreh De‘ah</i> 295:2 and <i>Pri Megadim Oraḥ Ḥayyim</i> 443:5 and 444:6, although R. Joshua Falk, <i>Derishah, Yoreh De‘ah</i> 297, avers that the prohibition against “placing a stumbling block” encompasses only an overt action but does not extend to passive nonfeasance.</i> Rabbi Breisch argues that since not only assistance in transgression but also offering poor counsel is prohibited by this commandment, "passive" counsel which is deleterious in nature is also forbidden. Advice designed to bring unhappiness or financial loss is clearly forbidden. Hence, according to <i>Mishneh le-Melekh</i>, failure to provide information and advice for the purpose of averting such unfortunate results is also a form of "placing a stumbling block before the blind." Accordingly, concludes Rabbi Breisch, a physician is not at all justified in maintaining his own counsel in circumstances which would result in grief or financial loss to others.
  Thus, the recipient of a privileged communication is obliged to disclose information imparted to him in order to preserve the lives and property of others. If, however, no danger exists, or if the danger can be averted by other means, he may not violate the confidence. The desire to see an evildoer brought to justice and punished for his crime is not, in itself, sufficient reason to justify breach of confidence. When it is necessary to disclose information, disclosure must be limited to those facts and details which require disclosure in order to obviate danger.
  Rabbi Waldenberg notes that Jewish law also provides that the <i>Bet Din</i> may compel testimony which would otherwise involve a breach of personal or professional confidence. The obligation born of the commandment "… he who is a witness … if he does not inform, he should bear his iniquity" (Leviticus 5:1) supersedes the obligation to respect the privacy of others. It would seem that in such cases Jewish law would require that testimony of this nature be heard <i>in camera</i> in order that matters of a personal nature not be overheard by persons who have no "need to know." This was indeed the ruling of the Israeli Supreme Rabbinical Court, <i>Piskei Din Rabbaniyim</i>, IX, 331, in a related case.
  The halakhic problem with regard to disclosure of confidential information by a physician is complicated by the fact that the Hippocratic oath contains the statement, "And whatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets." Thus, the physician is bound by a solemn oath not to divulge confidential information. Rabbi Waldenberg states that the physician may nevertheless be compelled by the <i>Bet Din</i> to testify. The <i>Mishnah, Shevu'ot</i> 29a, declares that an oath not to testify in a given matter is an oath taken in vain. All Jews are bound by the oath taken at Mount Sinai to obey the commandments of the Torah. Hence a person cannot swear a binding oath not to testify since he is bound by a prior oath which compels his testimony when demanded by a <i>Bet Din</i>. This would appear to be the case even with regard to divulging information in order to avoid anguish or financial loss according to the opinion of Rabbi Breisch, who maintains that failure to do so constitutes a transgression.
  Rabbi Waldenberg, however, points out that this provision of Jewish law applies only to an oath pertaining specifically to testimony. The physician does not swear an oath not to testify, but rather swears a general oath not to divulge confidential information. Rabbi Waldenberg cites authorities who maintain that a general oath applying to situations not involving infractions of Jewish law is a binding oath and hence acquires validity in all situations including those which involve a transgression of Halakhah. Nevertheless, Rabbi Waldenberg asserts that the oath is not binding in such situations because it may be assumed that the physician "and specifically the observant physician" had no intention of including in his oath situations in which failure to divulge such information would constitute a transgression. Despite his conviction with regard to this point Rabbi Waldenberg adds that the oath should be annulled under such circumstances by a court of three. This would be necessary, according to some authorities, in situations in which the physician is the sole witness since, according to those authorities, the obligation to testify devolves upon witnesses only when they are at least two in number.
  It should be noted that nullification of the oath in all circumstances in which the witness is called upon to testify is required by R. Ya'akov Weil, <i>Teshuvot Mahariv</i>, no. 42. This opinion is cited by the commentaries on Shulḥan Arukh, Hoshen Mishpat 28, some of whom express astonishment at such a requirement. <i>Pitḥei Teshuvah, Hoshen Mishpat</i> 28:3, advances the explanation that such nullification is required lest the physician's testimony prove to be purposeless, in which case no breach of confidentiality would have been warranted.
  The question of whether testimony by a physician before a <i>Bet Din</i> constitutes a violation of the Hippocratic oath is also discussed by Rabbi Baruch Rakover, presently a member of the rabbinical court of Haifa, in <i>No'am</i>, vol. II (5719). Rabbi Rakover concludes that the physician is forbidden to testify by virtue of his oath in situations in which he is the sole witness. Moreover, even when the witnesses are two or more in number, argues Rabbi Rakover, the physician may not testify unless summoned to do so by one of the litigants. Testimony is ordinarily obligatory by virtue of the specific biblical commandment, "if he shall not testify he shall bear his iniquity" (Leviticus 5:1). This commandment is understood as requiring testimony only when demanded by a litigant. In the absence of a demand on the part of a litigant the witness is required to come forward by virtue of a general obligation to prevent loss or damage to one's fellow. The requirement to give testimony voluntarily under such circumstances is recorded in <i>Yoreh De'ah</i> 239:7. Rema rules that since the obligation to testify under such circumstances is not explicitly stated in Scripture a prior oath not to testify is valid and must be annulled before giving testimony.
  Furthermore, citing R. Jonathan Eybeschutz, <i>Urim ve-Tumim, Hoshen Mishpat</i> 28:1, Rabbi Rakover argues that some authorities maintain that a general oath not to divulge information "to any person" is valid and, since not undertaken specifically in violation of a religious duty, binds the person taking such an oath not to divulge such information even before a <i>Bet Din</i>.
  Citing <i>Pitḥei Teshuvah, Hoshen Mishpat</i> 34:14, Rabbi Rakover further argues that evidence, when offered in violation of an oath, cannot be accepted by a <i>Bet Din</i> since the witness automatically disqualifies himself by virtue of violating his oath. Rabbi Rakover rejects the contention subsequently advanced by Rabbi Waldenberg to the effect that it may be assumed that the physician had no intention of including in his oath situations in which failure to divulge information would constitute a transgression since "in many countries it is the law—and this is the practice in the administration of justice in civil courts in our country [Israel]—that a physician may not testify without permission of the patient."
  It would appear to this writer that this entire problem dissipates upon a close reading of the Hippocratic oath. The physician swears not to divulge whatsoever he shall see or hear in the course of his profession only "if it be what should not be published abroad."Judaism clearly establishes standards of what should and should not be published abroad. The observant physician certainly understands the words of the oath in that manner. Accordingly, the physician is bound by the Hippocratic oath to refrain from divulging only such information which Jewish law deems "should not be published abroad."
  Hazardous Medical Procedures
  The 5736 issue of <i>Shanah be-Shanah</i> features a contribution by Rabbi Shlomoh Goren bearing the title "The Problem of Medical Experimentation." In actuality, the article deals with the somewhat different question of hazardous medical procedures without at all addressing itself to the question of therapeutic experimentation. The discussion presents a cursory overview of various facets of this question but fails to cite much of the fairly extensive responsa literature dealing with this topic. The present analysis will, therefore, focus upon a wider range of works than the talmudic sources discussed in Rabbi Goren's article.
  It is a well-established principle of Jewish law that the obligation to cure and to preserve life is not limited to situations in which it may be anticipated that subsequent to therapy the patient will have a normal life-expectancy. <i>Yoma</i> 85a clearly indicates that a victim trapped under the debris of a fallen wall is to be rescued even if, as a result of such efforts, his life will be prolonged only by a matter of moments. Not only is every human life of infinite value but every moment of human life is also of infinite value. Accordingly, ritual restrictions such as Sabbath laws and the like are suspended even for the most minimal prolongation of life.
  When the possibility of curtailing even the brief span of life (<i>ḥayyei</i> <i>sha'ah</i>) which a terminal patient may anticipate is weighed against the possibility of cure accompanied by normal life expectancy, Jewish teaching accepts the principle that reasonable risks may be incurred in the hope of effecting a recovery. Thus, hazardous procedures are sanctioned in life-threatening situations even if the proposed therapy is such that the drug or procedure may prove to be not simply ineffective but deleterious in nature and the patient's life shortened thereby. This principle may be derived from the talmudic discussion in <i>Avodah Zarah</i> 27b concerning the incident of the four leprous men described in II Kings 7:3-4. The Syrian army had besieged Samaria. In addition, the region was suffering from a great famine. The lepers recognized that if they took no action they would die of hunger in a relatively short period of time. Were they, however, to cross into the Syrian lines one of two things would happen: either they would immediately be put to death as enemies or, if pitied because of their infirmity, they would be provided with food and their lives saved. Despite the danger, they reasoned, "Now therefore come, and let us fall into the host of the Syrians: if they save us alive, we shall live; and if they kill us we shall but die." The Gemara views this narrative not simply as a record of a historical event but as a paradigm providing scriptural sanction for assuming the risk of precipitating death in an attempt to restore conditions necessary for normal life-expectancy.
  In applying this principle, the Gemara, <i>Avodah Zarah</i> 27b, addresses itself to a very concrete problem. The Gemara reports that idolaters commonly harbored malevolent designs upon the lives of Jews. There was, at the time, strong reason to fear that, given the opportunity to do so, idol worshippers would commit acts of murder against Jews. Accordingly, the Gemara forbids Jews to submit to medical ministrations of an idolatrous practitioner. The question then arises as to whether or not this ban encompasses even situations in which the Jew is afflicted with a life-threatening malady. Rava states in the name of R. Yoḥanan that this ban does include situations in which the patient may possibly die if he does not receive medical attention. However, if the illness is such that, if left untreated, death is a certainty the patient may permit himself to be treated by an idolater. The reasoning advanced is that since the patient's death is a certainty he hazards nothing by placing himself in danger of being killed by the idolater. In analyzing this statement the Gemara interposes an objection and argues that the idolater may shorten the patient's life and thereby deprive him of even the minimal time (<i>ḥayyei sha'ah</i>) he might yet have lived. The Gemara replies that one is justified in jeopardizing a limited, brief life-expectancy in the hope that a cure may be achieved.
  On the basis of this talmudic discussion, R. Meir Posner, <i>Bet Meir, Yoreh De'ah</i> 339:1, and R. Jacob Reisher, <i>Shevut Ya'akov</i>, III, no. 85, specifically permit use of a hazardous drug which might cause death to result "within an hour or two" on behalf of a patient who would otherwise have lived for "a day or two days." Despite the brevity of the period of time which the patient may be expected to live without therapy, <i>Shevut Ya'akov</i> mandates consultation with "proficient medical specialists in the city" and rules that therapy is to be instituted only if the physicians recommend it by at least a majority of two to one. He further requires that the approval of the local rabbinic authority be obtained before such recommendations are acted upon.15<i class="footnote">See also R. Shlomoh Eger, <i>Gilyon Maharsha, Yoreh De‘ah</i> 155:1; R. Israel Lipshutz, <i>Tiferet Yisra’el, Yoma</i> 8:41; R. Ya‘akov Ettlinger, <i>Binyan Ẓion</i>, no. 111; and R. Eliezer Waldenberg, <i>Ẓiẓ Eli‘ezer</i>, IV, no. 13.</i>
  An apparent contradiction to this position is found in <i>Sefer Hasidim</i>, no. 467. This source describes a folk remedy consisting of "grasses" or herbs administered by "women" in treatment of certain maladies. These herbs are reported to either cure or kill the person so treated within a period of days. <i>Sefer Hasidim</i> admonishes that those who administer such potions "will certainly be punished, for they have killed a person before his time." R. Shalom Mordecai Shwadron, <i>Da'at Torah, Oraḥ Hayyim</i> 328:10, resolves this contradiction by stating that the instance discussed by <i>Sefer Hasidim</i> involves a situation in which there is clearly a possibility for cure without hazardous intervention. According to this analysis, <i>Sefer Hasidim</i> sets forth the common-sense approach that hazardous procedures dare not be instituted unless conventional, nonhazardous approaches have been exhausted.
  In none of these sources does one find a discussion or consideration of the statistical probability of prolonging life versus the mortality rate or the odds of shortening life. Yet, certainly, in weighing the advisability of instituting hazardous therapy, the relative possibility of achieving a cure is a factor to be considered. <i>Bet David</i>, II, no. 340, permits intervention even if there exists but one chance in a thousand that the proposed drug will be efficacious whereas there are nine hundred and ninety-nine chances that it will hasten the death of the patient. A differing view is presented by R. Joseph Hochgelernter, <i>Mishnat Hakhamim</i>, who refuses to sanction hazardous therapy unless there is at least a fifty percent chance of survival. Although this is also the position adopted by R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, X, no. 25, chap. 5, sec. 5, it is, however, contested by R. Chaim Ozer Grodzinski, <i>Teshuvot Aḥi'ezer, Yoreh De'ah</i>, no. 16, sec. 8. He further requires, as does <i>Shevut Ya'akov</i>, that dispensation be obtained from ecclesiastical authorities on each occasion that such therapy is administered. Rabbi Moses Feinstein, <i>Iggerot Mosheh, Yoreh De'ah</i>, II, no. 59, however, rules that in cases when, in the absence of intervention, death is imminent a hazardous procedure may be instituted as long as there is a "slim chance" (<i>safek raḥok</i>) of a cure, even though the chances of survival are "much less than even" and it is, in fact, almost certain that the patient will die. The late Rabbi I. Y. Unterman, the former Chief Rabbi of Israel, writing in <i>No'am</i>, XII (5730), p. 5, maintains that medical risks are warranted "when there is hope of a cure … even if in most cases [the procedure] has not been successful and will shorten life."
  A much earlier authority, R. Moses Sofer, <i>Teshuvot Hatam Sofer, Yoreh De'ah</i>, no. 76, refuses to sanction a hazardous procedure in which the chances of effecting a cure are "remote" but offers no mathematical criteria with regard to the nature of the mortality risk which may properly be assumed.
  <i>Tiferet Yisra'el, Bo'az, Yoma</i> 8:3, raises a quite different question in discussing the permissibility of prophylactic inoculations which are themselves hazardous. In the situation described, the patient, at the time of treatment, is at no risk whatsoever. The fear is that he will contract a potentially fatal disease, apparently smallpox. The inoculation, however, does carry with it a certain degree of immediate risk. <i>Tiferet Yisra'el</i> justifies acceptance of this risk which he estimates as being "one in a thousand" because the statistical danger of future contagious infection is greater.
  Insofar as there is disagreement between the authorities cited, such disagreement is limited to the permissibility of instituting potentially hazardous therapy. Procedures which involve any significant risk factors are always discretionary rather than mandatory and accordingly, no authority demands that hazardous therapy be initiated.
  None of the previously cited discussions draws a distinction between the use of known and accepted techniques or drugs which are hazardous in nature and hazardous procedures which are entirely experimental. However, one contemporary author, Rabbi Moshe Dov Welner, Chief Rabbi of Ashkelon, does discuss medical experimentation. Rabbi Welner differentiates between various cases on the basis of the experimental nature of the risk involved, rather than on the basis of anticipated rates of survival. Writing in <i>Ha-Torah ve-ha-Medinah</i>, VII-VIII (5716-17), p. 314, Rabbi Welner argues that hazardous procedures may be undertaken despite inherent risks only if the therapeutic nature of the procedure has been demonstrated. For example, a situation might arise which calls for the administration of a drug which has known curative potential but which is also toxic in nature. The efficacy of the drug is known but its toxicity may, under certain conditions, kill the patient. The drug may be administered in anticipation of a cure despite the known statistical risk. The same statistical risk, argues Rabbi Welner, could not be sanctioned in administering an experimental drug whose curative powers are unknown or have not been previously demonstrated. This, he maintains, is why <i>Sefer Hasidim</i> censures the practice of administering dangerous herbs as was the custom of women in his day. According to Rabbi Welner, it was not the risk <i>per se</i> which was found to be objectionable; rather, utilization of the herbs in question was simply not accepted medical practice. Since the efficacy of such potions had not been demonstrated, risk to the life of the patient precludes their use. The same distinction is applied by Rabbi Welner with regard to surgical procedures. Surgical hazards are acceptable only when the technique is known to be effective. In the opinion of Rabbi Welner, hazardous surgery employing experimental techniques does not justify exposure to risk.
  A related problem is the attitude toward hazardous therapy for alleviation of pain or other symptons rather than for the cure of a potentially fatal illness. R. Jacob Emden, <i>Mor u-Kezi'ah, Oraḥ Hayyim</i> 338, adopts a somewhat ambivalent position with respect to this question. This authority refers specifically to the surgical removal of gall stones, a procedure designed to correct a condition which he viewed as presenting no hazard to life or health but recognized as being excruciatingly painful. He remarks that, in the absence of danger to life, those who submit to surgery "do not act correctly" and that the procedure is "not entirely permissible." However, Me'iri, <i>Sanhedrin</i> 84b, and Rema, <i>Yoreh De'ah</i> 241:13, both sanction hazardous procedures designed to alleviate pain rather than to preserve life. An analysis of conflicting views with regard to this question may be found in <i>Contemporary Halakhic Problems</i>, I, 121-123.
  Induced Labor
  <i>Sha'arei Halakhot</i>, no. 9 (Adar 5736), published by Yeshiva Bais Shearim, contains an item dealing with the propriety of induced labor contributed by that institution's <i>Rosh Yeshivah</i>, Rabbi Menasheh Klein.
  In recent years it has become increasingly frequent for some obstetricians to recommend that labor be induced by chemical means late in the ninth month of pregnancy. The major advantage of induced labor is that it enables the physician to plan in advance and to arrange his schedule in order to be available when needed. Delivery may be planned to occur during hours which are convenient without disrupting sleep or recreation. Daylight delivery is also deemed to be medically desirable because expert staffs are available and are able to work at peak efficiency. Moreover, should an emergency occur, other specialists and support personnel are more likely to be available during normal working hours than at other times. Rabbi Klein reports that some persons have advanced a uniquely halakhic consideration arguing for this practice; viz., a desire to obviate the occurrence of childbirth on <i>Shabbat</i>, and the attendant violation of Sabbath regulations.
  Rabbi Klein argues strongly against this practice. His major contention is that Jewish law constrains a person from placing his life in jeopardy. Childbirth is viewed by Halakhah as posing an intrinsic risk to the life of the mother. This is evidenced by provisions of Jewish law which mandate the suspension of various ritual laws during the post-partum period. Although the pregnant woman will ultimately experience the selfsame dangers of childbirth upon the conclusion of the nine-month period of gestation, Rabbi Klein argues that the prohibition against placing one's life in danger includes a constraint against preponing even an otherwise unavoidable hazard. Moreover, there is no obligation to intervene in natural processes in an artificial manner in order to avoid violation of <i>Shabbat</i> laws following childbirth. Rabbi Klein also marshalls aggadic and kabbalistic sources indicating that the entire nine-month period spent by the fetus in the mother's womb is beneficial to the subsequent physical and mental development of the child. The Gemara, <i>Niddah</i> 30b, teaches that the child is taught the Torah in its entirety while in the mother's womb but is caused by an angel to forget what it has learned before parturition. Foreshortening this experience, argues Rabbi Klein, is certainly not to the benefit of the child.
  There is, indeed, medical evidence indicating that induced labor poses hazards for the child. The drugs administered in inducing labor can lead to an increase in fetal morbidity during labor and after delivery. Then, too, there is the everpresent possibility of an error in the dating of gestation which may result in a premature birth leading to death or irreparable damage in the neonatal period. The British medical journal, <i>Lancet</i>, November 16, 1974, pp. 1183-84, featured an editorial severely critical of the practice of inducing labor for reasons of convenience and labelled such procedure a pernicious practice. The medical argument for daylight delivery is also challenged in this editorial. Evidence is cited which demonstrates that, oddly, fetal complications, as judged by the need for incubation or oxygen administration, may be more common during the day than during the night.
  These considerations apply <i>a fortiori</i> to delivery by cesarean section when not indicated on medical grounds. Recent reports indicate that in some South American countries this procedure is preferred over natural childbirth in certain strata of society simply on the basis of cosmetic considerations since pregnancy terminated by cesarean section leaves virtually no effect upon the feminine figure. From the halakhic point of view, such frivolous considerations certainly do not justify the increased risk associated with this surgical procedure. Moreover, the surgical incision, when not therapeutically indicated, constitutes an assault upon the body and is forbidden as an act of "wounding" (<i>ḥavalah</i>).
  It is, however, perfectly clear that when medically indicated, there is no restriction upon either induced labor or performance of a cesarean section. The assumption of the risks involved in these procedures is clearly warranted in order to avoid other risks which are greater in nature. Labor may therefore be induced or speeded if nonintervention would result in greater risk.
  
  Chapter IV Marriage, Divorce and Personal Status
  
  <i>What blessing is recited upon betrothal? Blessed art Thou … who has commanded us concerning forbidden unions and has forbidden to us the betrothed but has permitted to us those wedded through the nuptial canopy and marriage….</i>
  KETUBOT 7b
  It is indeed true that, from the perspective of Jewish law, marriage is fundamentally a contractual relationship between husband and wife. In return for consideration (the wedding band), or by means of other appropriate modes of conveyance prescribed by the Mishnah, <i>Kiddushin</i> 2a, the bride gives herself exclusively to the groom; the groom assumes concomitant marital obligations vis-à-vis his wife, including the obligation of support and maintenance. The matrimonial state arises solely from the voluntary actions of the parties, and is not contingent upon either the blessing of an officiating clergyman or the pronouncement of their relationship as that of man and wife by an officer of the state.
  Divorce, in essence, is the cancellation of the contractual relationship and the obligations which flow therefrom. Although execution of a bill of divorce must be conducted in the prescribed manner, it too requires neither ecclesiastic sanction nor a decree of the state. In Jewish law the parties themselves terminate the relationship, not the state. This is not to say that marriage entails no more than a covenant between the parties. Marriages are indeed made in heaven. Matrimony is sacred and occasions not merely personal but religious obligations as well. However, Judaism teaches that the unique sanctity of marriage stems from the Sinaitic covenant and is peculiar to Jews. To be sure, Judaism teaches that non-Jews are bound by the provisions of the Noachide Code which does prohibit adultery. Nevertheless, the relationship of <i>ishut</i>, or matrimony as recognized by Jewish law, is contingent upon the unique sanctity of the community of Israel.
  Ramban, in his commentary on <i>Yevamot</i> 98a, joins many other scholars in questioning the propriety of Jacob's action in marrying two sisters, Rachel and Leah. Such marriages are explicitly enjoined by Leviticus 18:8 and rabbinic tradition maintains that the Patriarchs observed the commandments even prior to their revelation at Mount Sinai. This difficulty is resolved by other authorities in a variety of ways. Ramban offers an incisive explanation. Consanguineous relations are forbidden to Noachides, yet sexual liasons with close relatives of a spouse are incestuous only for Jews, but not for non-Jews. Ramban remarks that this is so because <i>"ishut let lehu,"</i> i.e., non-Jews are excluded from the institution of <i>ishut</i>. Thus Jacob was able to marry his sister-in-law because, odd as it may sound, she was not the sister of a "wedded" wife. Assuredly, a relationship did exist between Jacob and his spouse, but it was significantly different from a sanctified matrimonial relationship since such relationships became hallowed only at Sinai.
  The Brisker Rav, Rabbi Yitzchak Ze'ev Soloveitchik, <i>Hiddushei Rabbenu ha-Griz Soloveitchik al ha-Torah (me-pi ha-shemu'ah)</i>, no. 5, finds this concept reflected in the very blessing pronounced under the nuptial canopy. The blessing which praises God "who has commanded us concerning incestuous relationships" seems to be entirely unrelated to the proceedings and indeed appears to be anomalous when recited prior to entering into a lawful matrimonial relationship. The Brisker Rav explains that the blessing is occasioned by marriage because the reference to incestuous relationships denotes in-law relationships which are incestuous only by virtue of the marriage about to be performed. The Jew on such occasion praises God "who has sanctified us by his commandments and forbidden us incestuous relationships" because it is only by virtue of the sanctification of Israel at Sinai that matrimony—and hence in-law relationships—became a halakhic category. Such relationships are born of the sanctity of marriage and of the family. This sanctity, conferred upon our ancestors at Sinai, is unique to the community of Israel.
  Dating the Ketubah
  Quite frequently, particularly during the months of spring and early summer during which a disproportionate number of weddings are celebrated, the wedding ceremony is scheduled for an hour which coincides with the twilight period, i.e., <i>bein ha-shemashot</i>, a period which is neither clearly day nor clearly night. Performance of the wedding ceremony between sunset and nightfall poses a question with regard to the dating of the <i>ketubah</i>. The <i>ketubah</i> is customarily prepared and signed prior to the celebration of the marriage. The <i>ketubah</i> would ordinarily bear the date of execution, i.e., the date on which it is written and signed, as indeed would be the case with regard to any commercial instrument. Hence, if the <i>ketubah</i> is prepared before sunset and the wedding is delayed until nightfall, the <i>ketubah</i> would bear a date one day prior to that of the actual marriage. The halakhic propriety of such a procedure has been questioned by many. The <i>ketubah</i>, in its essence, is a financial contract which imposes a monetary obligation upon the husband. Although the stipulated sum is due and collectible only upon dissolution of the marriage by virtue of the death of the husband or divorce, execution of the <i>ketubah</i> generates a lien upon all property held by the husband at the time of, or acquired subsequent to, the marriage. Accordingly, the bride's claim, since it is prior in time, takes precedence over any other obligation assumed by, or imposed upon, the husband subsequent to marriage. The <i>ketubah</i>, although collectible only at a later date, constitutes a prior claim which must be paid before other creditors are satisfied. A predated <i>ketubah</i> is a defective instrument because it falsely testifies to the existence of a lien against property as of the date it bears, while, in fact, no valid lien exists prior to the actual time of execution of the <i>ketubah</i>. Other claims upon the husband's property which might arise prior to the marriage would have precedence over the wife's claim to her <i>ketubah</i>. Thus a falsely dated instrument might have the effect of illicitly infringing upon the rights of other claimants and hence is invalid. This consideration has led some rabbis to insist that the marriage ceremony be performed either prior to sunset or that it be delayed until after dark so that the <i>ketubah</i> may bear a date which is unquestionably that on which the marriage is celebrated.
  This question is analyzed in detail in two separate contributions to <i>Ha-Emek</i>, a publication of the Kollel Yirei ha-Shem in Jerusalem. Rabbis Chaim Yosef Dinkeles, writing in the Nisan 5731 issue, and Shmuel Roth, writing in the Tammuz 5731 issue, both find grounds for sanctioning execution of the <i>ketubah</i> on a date prior to that of the wedding.
  Marriage consists of two separate acts, viz., <i>eirusin</i> and <i>nisu'in. Eirusin</i> is commonly effected through presentation of a ring by the groom to the bride and creates a marital bond which can be dissolved only by death or divorce. Although the <i>arusah</i> cannot contract a marriage with another man, cohabitation between bride and groom is prohibited until solemnization of <i>nisu'in</i>, i.e., until the bride is conducted to the domain of the groom symbolized by the nuptial canopy or, according to some authorities, actual seclusion of the bride and the groom in the presence of witnesses for this specific purpose. Marital rights and duties which exist between husband and wife come into being only upon <i>nisu'in</i>. Accordingly, there exists no statutory obligation with regard to the <i>ketubah</i> until <i>nisu'in</i> has taken place. Citing <i>Kesef Mishneh, Hilkhot Ishut</i> 10:11, Rabbi Dinkeles argues that, despite the absence of statutory obligation, the groom, if he so desires, may voluntarily assume such obligation even prior to <i>eirusin</i>. According to <i>Kesef Mishneh</i>, the obligations of the <i>ketubah</i> are contingent, in whole or in part, upon subsequent solemnization of the marriage. Nevertheless, the lien established by writing and signing the <i>ketubah</i> at an earlier date is retroactive to the time of execution of the <i>ketubah</i>.
  Rabbi Roth draws attention to a reference in <i>Kiddushin</i> 50b to "places in which they write [the <i>ketubah</i>] and subsequently perform <i>kiddushin."</i> In a locale in which this is the usual practice possession of a <i>ketubah</i> does not in itself constitute proof of the existence of a matrimonial relationship. It is, however, clear that although in such places the <i>ketubah</i> is not evidence that a marriage has taken place because it may have been prepared in advance, the <i>ketubah</i> is, nevertheless, not deemed to be a defective instrument by virtue of improper dating. Consequent to presentation of other evidence demonstrating the existence of a marital state, the <i>ketubah</i> may be used as evidence of non-satisfaction of the husband's financial obligations. Accordingly, both writers conclude that the writing of the <i>ketubah</i> need not be delayed and that the document may indeed bear a date prior to that of the actual ceremony.
  Neither of these scholars discusses the propriety of drawing up the <i>ketubah</i> prior to sunset but postdating it to bear the date of the following day. Although a valid instrument may be executed in this manner, Rema, <i>Hoshen Mishpat</i> 43:12-13, rules that one should avoid post-dating a promissory note because of "the appearance of falsity." Yet, the very text of the <i>ketubah</i> incorporates the declaration of the groom "Be thou my wife according to the law of Moses and Israel" and records that the bride "consented and became his wife," events which are anticipated but which, in fact, have as yet not occurred. Presumably, this practice is not deemed to be tainted with "the appearance of falsity" since it is commonly understood that such clauses are included in anticipation of the event and that, halakhically, assumption of the obligations of the <i>ketubah</i> is contingent upon those events actually taking place. By the same token, since the events are recorded in the past tense, it would appear that there is no "appearance of falsity" in utilizing the date on which these events will actually occur. It would be immediately understood that a later date was utilized since the events described have as yet not occurred but will indeed have occurred, and hence be accurately described as past events, as of the date recorded in the document.
  Utilization of a post-dated <i>ketubah</i> poses the additional question of whether bride and groom may be secluded together during the period between sunset and night. Cohabitation is forbidden by Halakhah unless a valid <i>ketubah</i> has been executed. Although Shulḥan Arukh, Even haEzer 66:1, also forbids seclusion of the bride and groom in the absence of a valid <i>ketubah</i>, Rema prohibits only cohabitation but permits seclusion. Since the <i>ketubah</i> is designed to impose a financial burden upon the husband in the event of divorce and thus to serve as an impediment to impulsive divorce, it may be argued that prior execution of a post-dated <i>ketubah</i> would serve to render seclusion permissible even according to the opinion of <i>Shulḥan Arukh</i>. Possession of such a document means that it may be validly used by the bride as a cause of action immediately subsequent to nightfall, an event which will occur in a matter of minutes. The certain knowledge of the automatic validation of such a document but a few minutes hence surely constitutes a deterrent to impulsive divorce.
  Maternal Identity
  The question of whether or not a host mother is, for halakhic purposes, considered to be the mother of the fetus to which she gives birth is discussed in <i>Contemporary Halakhic Problems</i>, I, 106–109. A similar, although somewhat different, question arises with regard to <i>in vitro</i> fertilization. In the latter case, the ovum which is fertilized does belong to the mother who bears the child. Conception, however, does not take place within the mother's body. The question which must be considered is whether, for purposes of Jewish law, maternal identity is established by conception, by parturition or, perhaps, by genotype.
  Rabbi Moshe Hershler, <i>Halakhah u-Refu'ah</i>, I (Jerusalem, 5740), 316, adduces an interesting proof demonstrating that, at least for some purposes, maternal relationship is established by the act of parturition. The Gemara, <i>Yevamot</i> 97b, describes the case of a pregnant woman who became a convert to Judaism and then gave birth to twins. Since conception took place prior to her conversion, Jewish law recognizes no halakhic paternity and hence no levirate obligations devolve upon the twins since they are not deemed to be paternal siblings. Levirate obligations are imposed only upon brothers sired by the same father. The Gemara does, however, declare that, since the twins are maternal siblings, the wife of either twin is forbidden to the other as the wife of a half-brother, i.e., as "the wife of a brother on the mother's side." It must be remembered that were the mother's conversion to have taken place after the birth of the twins no halakhic relationship would be recognized subsequent to the twins' own conversion to Judaism and hence no biblical prohibition would prevent either twin from marrying the widow of the other. Since conception while the mother is yet a non-Jewess does not establish a maternal relationship which survives conversion, the maternal relationship posited by the Gemara in the case of a pregnant woman who became a proselyte must come into being by virtue of parturition.
  An argument based upon an aggadic source establishing the opposite conclusion was first advanced by R. Menasheh Grossberg, <i>Sha'arei Torah, Sha'ar Menasheh</i>, XV (5684), no. 3. The Gemara, <i>Berakhot</i> 60a, declares that Dinah was born a female as a result of Leah's prayers during her pregnancy. Knowing that Jacob would become the father of a total of twelve sons and not wishing her sister Rachel to bear their husband fewer sons than the maidservants, Bilhah and Zilpah, Leah prayed that her already conceived fetus be born a female. It is clear from the parallel narrative recorded in the Palestinian Talmud, <i>Berakhot</i> 9:3, that the phenomenon described by the Sages involved an <i>in utero</i> sex change. However, <i>Targum Yonatan</i>, Genesis 30:21, states that what transpired was not a sex change in Leah's fetus but a physical exchange of the fetus from the womb of Leah to the womb of Rachel and vice versa, i.e., Dinah was conceived by Rachel but transferred to the womb of Leah while Joseph was conceived by Leah and transferred to the womb of Rachel.1<i class="footnote">See also R. Chaim Yosef David Azulai, <i>Devash le-Pi, ma‘arekhet ayin</i>, s.v. <i>ayin ha-ra</i>. This view, attributed to a midrashic source, is also cited <i>by Ba‘alei ha-Tosafot, Moshav Zekenim</i> (London, 5719), Genesis 46:10 and in <i>Peirush ha-Tur he-Arukh</i>, Genesis 30:21. See also <i>Meshekh Ḥokhmah, Parshat Va-Yeḥi</i>, s.v. <i>bnei Raḥel</i>.</i> Maharsha, <i>Niddah</i> 31a, asserts that this is also the correct interpretation of the narrative recorded in <i>Berakhot</i> 60a. The liturgical poem <i>"Even Hug,"</i> attributed to R. Eleazar ha-Kalir, which is included in the repetition of the <i>amidah</i> of <i>Shaḥarit</i> on the first day of <i>Rosh ha-Shanah</i> contains a passage predicated upon the identical premise: <i>"Zakhar lah yosher araḥot, ubar le-hamir be-veten aḥot; ḥushavah ke-ha-yom zikhrah le-he'aḥot, siluf Dinah bi-Yehosef le-hanḥot</i>—God remembered her righteous ways and exchanged the fetus in the womb of her sister; on this day was considered her remembrance in reward for her sisterly affection2<i class="footnote">Or perhaps, “on this day was considered her remembrance to make her equal to her sister.”</i> and the exchange of Dinah for Joseph was effected." <i>Kotnot Or</i> cites <i>Targum Yonatan</i> in resolving a question posed by R. Elijah Mizrahi in the latter's commentary on Genesis 46:10 with regard to the tradition which teaches that Simeon took Dinah as a wife. R. Elijah Mizrahi is troubled by the fact that even a Noachide is forbidden to marry his sister. <i>Kotnot Or</i> points out that only a maternal sister is forbidden to a Noachide; a half-sister who is a paternal sibling is permitted to a Noachide. <i>Kotnot Or</i> observes that, according to <i>Targum Yonatan</i>, Dinah was really the daughter of Rachel and hence not a maternal sister of Simeon. The implication of <i>Kotnot Or</i>'s thesis is that the maternal relationship is established by conception rather than birth.3<i class="footnote">See also R. Yonatan ha-Levi Eibeschutz, <i>Ha-Be’er</i>, VIII (5693), no. 3. A position identical to that of <i>Kotnot Or</i> is espoused by <i>Moshav Zekenim</i>, Genesis 46:10 and tentatively advanced <i>by Peirush ha-Tur he-Arukh</i>, Genesis 46:10.</i>
  Rabbi Hershler, apparently unaware of this earlier discussion, cites <i>Targum Yonatan</i> as establishing that maternal identity is established by parturition and, indeed, it may be noted that Genesis 34:1 does speak of "Dinah the daughter of Leah." An identical conclusion based upon the comments of <i>Targum Yonatan</i> was earlier reached by R. Zevi Hirsch Friedling, <i>Ha-Be'er</i>, VI (5691), no. 3; and by R. Betzalel Ze'ev Safran, as reported by his son in <i>Ha-Be'er</i>, VII (5692), no. 2, and reprinted in <i>Teshuvot ha-Rabaz</i>, I (Jerusalem, 5722), <i>Teshuvot mi-Ben ha-Meḥaber</i>, no. 5. The diverse conclusions reached on the basis of the same narrative illustrates the cogency of the position of R. Joshua Feigenbaum, author of <i>Teshuvot Meshiv Shalom</i>, expressed in a contribution to <i>Sha'arei Torah</i>, vol. XV, no. 4. In disagreeing with <i>Sha'ar Menasheh</i>, Rabbi Feigenbaum points out that halakhic principles are not derivable from aggadic sources.4<i class="footnote">Maternal identity is also discussed by R. Judah Gershuni, <i>Or ha-Mizraḥ</i>, Nisan-Tammuz 5738, reprinted in Rabbi Gershuni’s collected essays, <i>Kol Ẓofai-yikh</i> (Jerusalem, 5740), pp. 361–367; and by R. Moshe Soloveichik, <i>Or ha-Mizraḥ</i>, Tishri-Tevet 5741 (<i>Gilyon ha-Me’ah</i>), pp. 122–128. See also the unpublished responsum of R. Ovadiah Yosef cited by R. Moshe Drori in <i>Teḥumin</i>, I (Winter, 5740), 287ff.</i>
  Indirect Coercion in Compelling a Get
  A two to one decision handed down by the Rabbinical District Court of Tel Aviv on 12 Adar I 5738 and published in <i>Piskei Din shel Batei ha-Din ha-Rabbaniyim</i>, vol. 11, no. 10, pp. 300-308, presents an extensive discussion of an issue having ramifications far beyond the case at bar. The dissenting opinion, in the form of an article by Rabbi Shlomoh Dichovsky, is included in <i>Teḥumin</i>, I (5740), 248–254.
  The decision deals with the application of a young woman for an order requiring her husband to execute a <i>get</i>. Litigation began some two years earlier. At that time the couple had been married for approximately one year, but the husband was already serving a four-year sentence in an Israeli prison for drug-related offenses and theft. The wife sought a divorce on grounds of her husband's imprisonment. The <i>Bet Din</i>, acting on her petition, issued a ruling on 12 Shevat 5736 directing the husband to grant her a divorce (<i>ḥayyav la-tet get</i>) for reasons of nonsupport and denial of consortium as a result of his incarceration. However, as is frequently the case, the court did not find that the situation warranted a ruling compelling the husband to execute a <i>get</i> or religious divorce upon pain of coercive corporal force or further incarceration. The husband declined to obey the directive of the <i>Bet Din</i>. On 27 Kislev 5738 the wife again petitioned the <i>Bet Din</i> for execution of a <i>get</i>, this time claiming as additional grounds her adulterous relationship with another man. At a subsequent hearing the husband declined to give credence to her confession of adultery and again refused to agree to the execution of a <i>get</i>. At the conclusion of the hearing the husband behaved in an uncouth and volatile manner, expectorating in the direction of the members of the <i>Bet Din</i> and hurling vile epithets and curses upon them. He was physically restrained by his guards and returned to prison.
  Other than in certain limited circumstances in which Jewish law provides that a husband may be compelled to divorce his wife, a <i>get</i> obtained as a result of coercive measures is void. The issue before the <i>Bet Din</i> was whether, in the absence of a finding permitting utilization of coercive force in securing the husband's compliance, the <i>Bet Din</i> might employ an indirect method of compelling the husband to obey its directives. It is common practice in Israel, as in many other countries, for a parole board to grant a reduction of as much as one third in the term of imprisonment for reason of good behavior. The <i>Bet Din</i> found itself in a position to make a recommendation against parole on two grounds:
  1) The prisoner's refusal to abide by the order of the <i>Bet Din</i> requiring him to issue a <i>get</i> does not constitute "good behavior." Hence the husband would not be entitled to a reduction in sentence. In making such a recommendation to the penal authorities, the <i>Bet Din</i> would not be directing incarceration for nonfeasance—which would constitute a form of coercion—but would simply be making a factual statement concerning the character and behavior of the prisoner. In rejecting an application for commutation of sentence, the parole board would find the prisoner to be unworthy of clemency, which is a privilege rather than a right, and would continue his imprisonment for completely unrelated offenses.
  2.) If such a recommendation were found to be so closely related to the issuance of a <i>get</i> as to be regarded as coercive in nature another avenue presents itself. The untoward behavior of the prisoner at the hearing before the <i>Bet Din</i> constituted contempt of court. Contemptuous behavior before a <i>Bet Din</i> is a punishable offense in Israeli law. Hence, the husband's contemptuous behavior, in and of itself, regardless of compliance or non-compliance with the directive of the <i>Bet Din</i> concerning issuance of a <i>get</i>, would constitute grounds for rejecting commutation of his sentence for reason of good behavior. The <i>Bet Din</i> was thus in a position to "forgive" his contempt and to permit his release in return for voluntary execution of a <i>get</i>.
  The earliest responsum dealing with one form of indirect coercion in securing a <i>get</i> is found in a classic thirteenth-century work, <i>Teshuvot ha-Rashba</i>, IV, no. 40:
  Question: Reuben, the husband of Leah, and the relatives of Leah entered into an agreement requiring Reuben to divorce his wife, Leah. They agreed to a penalty of 1,000 <i>dinari</i> [upon failure] to execute a divorce by a specified time. Subsequently, Reuben retracted and refused [to execute a divorce]; whereupon, the others warned him concerning the penalty…. Because of this fear Reuben divorced [his wife]…. Shall we rule this to be a coerced <i>get?</i>
  Answer: It appears to me that this <i>get</i> is coerced and is invalid…
  Rashba maintains that any coercion relating to execution of a <i>get</i>, even if self-imposed in the form of a voluntarily assumed penalty for nonexecution, renders a <i>get</i> invalid. Rashba's responsum was addressed to his student R. Menachem Me'iri and the view expressed therein is espoused by Me'iri in the latter's commentary on <i>Gittin</i> 88b. This view is disputed by R. Shimon ben Ẓemaḥ Duran, <i>Teshuvot ha-Rashbaz (Tashbaz)</i>, II, no. 68, who declares, "One who says I will give 100 gold pieces to the king if I do not divorce my wife may divorce [his wife] and there is no question in the matter for since this obligation came of his own accord he divorces of his own will." This also appears to be the position of Rabbenu Perez as cited by <i>Tur Shulḥan Arukh, Even ha-Ezer</i> 154.5<i class="footnote">Cf., however, Teshuvot R. Beẓalel Ashkenazi, no. 17.</i> A similar view is cited by <i>Bet Yosef, Even ha-Ezer</i> 134, in the name of R. Maimon Nagar, a late fourteenth-century Spanish authority. Rabbenu Perez and R. Maimon Nagar distinguish between an oath to execute a <i>get</i> and a penalty assumed for nonperformance. The former is regarded as a form of coercion which invalidates a <i>get</i> even if the oath is sworn voluntarily. Having bound himself by an oath to execute a <i>get</i>, the husband has no choice but to divorce his wife and hence the <i>get</i> is deemed to be involuntary.6<i class="footnote">See, however, <i>Bet Yosef, Even ha-Ezer</i> 154, who understands these authorities as declaring only that a <i>get</i> issued subsequent to an oath obliging the husband to divorce his wife is tainted by the appearance of coercion, but is not, properly speaking, invalid.</i> In contradistinction, assumption of a penalty for nonperformance is not deemed to constitute coercion. Although the husband has undertaken to pay a penalty should he fail to execute a <i>get</i>, he nevertheless retains the option of satisfying the monetary obligation and not executing the divorce. Accordingly these authorities regard execution of a <i>get</i> under such circumstances as a free expression of the husband's will.7<i class="footnote">For a discussion of various attempts to reconcile these apparently conflicting opinions see R. Mordecai Jaffe, <i>Levush, Even ha-Ezer</i> 134, cited by <i>Bet Shmu’el, Even ha-Ezer</i> 134:8; R. Meir Posner, <i>Bet Me’ir, Even ha-Ezer</i> 134:4; <i>Mishkenot Ya‘akov</i>, no. 38; <i>Arukh ha-Shulḥan, Even ha-Ezer</i> 134:23; <i>Ḥazon Ish, Even ha-Ezer</i> 99:6, and R. Elyakim Ellinson, <i>Sinai</i>, Tammuz-Sivan 5731, pp. 144 ff.</i>
  Rema, <i>Even ha-Ezer</i> 134:5, cites both conflicting opinions and rules that a <i>get</i> should not be executed in the absence of prior forgiveness of the penalty for nonexecution, but adds that if a <i>get</i> has been executed under such circumstances it is valid even in the absence of prior forgiveness of the penalty, provided that the penalty was assumed voluntarily.
  The controversy between Rashba and other early authorities is limited to situations in which there is a direct relationship between the financial liability assumed by the husband and issuance of the <i>get</i>. Since imposition of the penalty is the direct result of failure to execute a divorce, that relationship is sufficient, in the opinion of Rashba, to render the <i>get</i> the product of coercion. However, when the husband's desire is the gain of some completely extraneous benefit or the escape from some totally unrelated obligation, the situation is entirely different. Accordingly, <i>Teshuvot Rivash</i>, no. 127, finds no grounds to invalidate a <i>get</i> issued in order to escape penalties for nonpayment of an unrelated debt. The case presented to Rivash involved a person cast into debtor's prison for nonpayment of a debt. His wife's relatives offered to satisfy the debt on his behalf and thereby obtain his release from prison on the condition that he divorce his wife. Rivash finds no objection to execution of a <i>get</i> under such circumstances "for he was not seized in order to [compel] him to divorce [his wife] but on account of his debt; the <i>get</i> is not coerced but [the product] of free will."
  <i>Teshuvot ha-Rashbaz</i>, I, no. 1, modifies this decision by stating that such a <i>get</i> is valid only if the extraneous sanctions applied in order to secure compliance on the part of the husband are legitimate, i.e., the debt which he is called upon to satisfy is legal and actionable. A divorce executed in order to escape payment of a debt which in any event is not actionable is, in the opinion of <i>Tashbaz</i>, invalid. Such a claim, since it is invalid, is regarded by <i>Tashbaz</i> as a disguised attempt to compel a <i>get</i>.
  This interpretation of Rivash's position is rejected by <i>Teshuvot Ra'anaḥ</i>, no. 43. In order to prevent precipitous marriages, the community had promulgated a <i>ḥerem</i> prohibiting any marriage ceremony in the absence of a quorum of ten. In violation of the ban, a man entered into a marriage in the absence of the requisite quorum and was incarcerated by the communal officials. His release from prison was made contingent upon execution of a divorce. <i>Teshuvot Ra'anaḥ</i> finds that imprisonment was an inappropriate and illicit penalty for violation of the ban, but that a <i>get</i> issued in such circumstances would be valid nonetheless. The husband, argues this authority, was imprisoned not in order to compel divorce but because of another matter entirely, i.e., solemnization of a marriage in violation of the communal edict. Release from prison in return for execution of a <i>get</i> is not perceived by <i>Teshuvot Ra'anaḥ</i> as a form of coercion since the imprisonment, even though illegal, is not the result of nonexecution of a <i>get</i>.
  It would thus appear that, according to <i>Teshuvot Ra'anaḥ</i>, the Tel Aviv <i>Bet Din</i> might without any further finding properly decline to recommend parole unless the husband agrees to divorce his wife. According to <i>Tashbaz</i> such a procedure would require an antecedent finding by the <i>Bet Din</i> that an Israeli court may legitimately impose a prison term for the crimes with which the prisoner was charged (and legitimately impose such penalty on the strength of the evidence presented at his trial) even though there is no explicit provision in Halakhah for incarceration as a penalty for such offenses. The <i>Bet Din</i>, however, did not examine this issue but instead cited its frequent practice of causing penal sanctions to be imposed for contempt of court through the secular judiciary and argued that the husband's contemptuous behavior was sufficient warrant to justify denial of parole. The husband, reasoned the <i>Bet Din</i>, might then be offered release from prison in return for a <i>get</i> even according to the opinion of <i>Tashbaz</i>.
  The <i>Bet Din</i>, however, hesitated to rule in this manner because of the opinion of yet another authority. <i>Teshuvot Mabit</i>, II, no. 138, rules that even according to <i>Tashbaz</i> measures may be taken to collect a legitimate unrelated debt and forgiveness of the debt may be offered as an inducement for a divorce only if the husband has a genuine choice in the matter and the measures taken will in reality serve to exact payment in the event that the husband declines to grant a divorce. In such cases the coercive action taken is indeed undertaken for a purpose entirely extrinsic to the <i>get;</i> withdrawal of sanctions, which would otherwise realistically be effective in compelling payment, in return for execution of a <i>get</i> is thus not deemed to be coercion with regard to the <i>get</i>. However, when it is known that, despite the pressure brought to bear upon him, the husband cannot, or will not, pay the debt, the threat of compelling payment must, according to Mabit, be viewed as direct coercion of the <i>get</i>. In the case before the Tel Aviv <i>Bet Din</i> it is evident that the husband was given no choice; he must either execute a <i>get</i> or remain in prison. Hence, according to the opinion of Mabit, a <i>get</i> issued under such circumstances would be invalid.
  In point of fact, as noted by the <i>Bet Din</i> itself in its decision, this restrictive view is contradicted by the same authority in another responsum, <i>Teshuvot Mabit</i>, I, no. 22. A citizen of Safed was imprisoned by the civil authorities for "heretical" conduct and pleaded with the communal authorities to intercede on his behalf in order to secure his release. Those authorities responded by offering to secure his release if, in turn, he would agree to divorce his wife and leave the jurisdiction. In this responsum, Mabit ruled that the <i>get</i> was valid despite the fact that the husband had no other means of securing his release from prison.
  An attempt to resolve the apparent contradiction between these two responsa is undertaken in a latter-day work, <i>Simḥat Kohen, Even ha-Ezer</i>, III, no. 9. <i>Simḥat Kohen</i> distinguishes between coercion and forgiveness of punishment. This scholar argues that, even according to Mabit, the husband must be able to make a free choice only when coercive measures are applied in order to evoke a response. In such circumstances he must have a true choice between satisfying the debt or issuing a <i>get</i>. When no real choice exists, the <i>get</i>, according to Mabit, is invalid. However, declares <i>Simḥat Kohen</i>, when sanctions are applied in the nature of a punishment unrelated to the granting of a divorce, forgiveness or termination of the punishment in return for execution of a <i>get</i> is legitimate even according to Mabit. Accordingly, in <i>Teshuvot Mabit</i>, I, no. 22, the get is ruled to be valid since the civil authorities did not impose imprisonment upon the husband for purposes of compelling a <i>get</i> but by way of punishment for a completely unrelated matter. According to <i>Simḥat Kohen'</i>s analysis a recommendation for commutation of a prison sentence imposed for other offenses as a means of securing cooperation in execution of a <i>get</i> would have been valid even according to Mabit.
  The <i>Bet Din</i> also found possible grounds to distinguish between a recommendation <i>against</i> parole and failure to make a positive recommendation <i>for</i> parole. The <i>Bet Din</i> is clearly under no obligation to intervene on behalf of a prisoner. <i>Teshuvot Maharik</i>, no. 123, declares, "But if a person is imprisoned by gentiles because of taxes or some other matter we may say to him, 'We will not endeavor to have you released from prison unless you divorce your wife with a valid <i>get.'</i> This is not coercion since we are not doing him evil, but rather [we] are refraining from assisting him. Withholding of benefit is not deemed coercion." At least one member of the Tel Aviv <i>Bet Din</i> was prepared to argue that, since the prisoner enjoys no statutory right to a reduction of sentence, even an explicit recommendation against reduction of sentence would merely constitute a recommendation for withholding of a benefit. Another member of the <i>Bet Din</i> expressed concern that were such a recommendation to be made by the <i>Bet Din</i>, the prison authorities would in all likelihood explicitly inform the prisoner that he has a choice of either divorcing his wife or serving his full sentence, but did not expressly indicate why this would invalidate the <i>get</i>.
  Despite the arguments advanced auguring in favor of such a procedure, a majority of the members of the <i>Bet Din</i> ruled against an explicit recommendation for denial of parole. Although the reasons are not spelled out, it must be assumed that the majority of the <i>Bet Din</i> either felt constrained by the minority view of Mabit and were not convinced by <i>Simḥat Kohen'</i>s analysis of Mabit or else questioned whether imprisonment for the offense for which the husband was convicted or imprisonment for contemptuous behavior toward the <i>Bet Din</i> was justifiable in terms of Jewish law and rejected the argument that a recommendation against parole constitutes simply withholding of a benefit. Indeed, if imprisonment under such circumstances is not a legitimate penalty, it should logically follow that failure to commute the sentence is not simply the withholding of a benefit but constitutes continuation of an evil and therefore may not be used by prison authorities as a means of securing compliance with a directive to execute a <i>get</i>.
  The decision of the <i>Bet Din</i> in this case seems to be in conflict with the practice of Israeli <i>Batei Din</i> in other cases as reported by R. Benjamin Rabinowitz-Teumim, <i>No'am</i>, I (5718), 303. Under Israeli law it is an offense punishable by imprisonment or fine, or both, for any person to marry a girl under the age of seventeen other than in certain limited circumstances. Rabbi Rabinowitz-Teumim reports that, when such marriages do occur in violation of the law, it is the practice of the <i>Batei Din</i> of Tel Aviv to inform the husband that they will intercede on his behalf and recommend his release from prison upon execution of a <i>get</i>. This is justified, it is contended, because the imprisonment is for violation of the criminal statute and is essentially unrelated to the granting or withholding of a <i>get</i>.
  A direct precedent for this practice is found in <i>Teshuvot Rivash</i>, no. 132. At the time of Rivash some communities had promulgated ordinances forbidding the celebration of a marriage other than in the presence of ten persons in order to prevent elopement by men taking advantage of young girls. Rivash rules that violators may be incarcerated or released only subsequent to execution of a <i>get</i>. In justifying this position, Rivash declares that the <i>get</i> is not invalidated by reason of coercion since, in such circumstances, imprisonment is imposed as a penalty for violation of the communal ordinance and is not directly related to granting the <i>get</i>.
  Impotence as Grounds for Divorce
  In Israel matters concerning marriage and divorce are under the exclusive jurisdiction of the rabbinical courts. From time to time these courts are confronted with the need for a definitive decree in hitherto uncharted or poorly charted judicial waters. The text of one such decree, issued by the Tel Aviv Rabbinical District Court composed of Rabbis S. B. Werner, E. Azulai and D. C. Zimbalist, has been published in the official case record of the rabbinical courts, <i>Piskei Din Batei ha-Din ha-Rabbaniyim</i>, vol. X, no. 4, pp. 104-108.
  The case, on the surface, involves a matter which is well-settled in terms of Jewish law. The plaintiff, a young, recently married woman, applied for a judgment directing her husband to issue a bill of divorce. The grounds for her suit were the husband's alleged impotence.
  The law applicable in the absence of a denial or counterclaim is recorded in <i>Even ha-Ezer</i> 154:7. In the event that the husband concedes that he is impotent he is clearly obligated to accede to the wife's desire for a divorce and her rights in the matter are enforced by the <i>Bet Din</i>. In the event of the husband's denial of impotence, <i>Shulḥan Arukh</i> records that the woman's claim—rather than the husband's denial—is given credence provided that her claim is not accompanied by a demand for payment of the <i>ketubah</i> to which she is entitled by virtue of the marriage contract. The prevailing legal assumption is that, <i>ceteris paribus</i>, a wife will not have the audacity to impugn her husband's virility in his presence unless he is indeed impotent and her claim is therefore given credence over the husband's denial. In the event that her petition is accompanied with a claim for a settlement of the <i>ketubah</i> her credibility is compromised by virtue of the obvious pecuniary interest involved. The <i>Bet Din</i> then has reason to question her veracity since her claim may have been unjustly advanced in order to secure the financial benefits due a divorcée. Rema enters a caveat and states that in "our day" the wife is not automatically believed since there now exist "audacious women" quite capable of presenting such false pleas. Nevertheless, Rema agrees that in the presence of corroborating evidence of other factors which tend to confirm the wife's statement her version is to be accepted. <i>Shakh</i>, in his <i>Gevurat Anashim</i>, no. 67, declares that, even following the opinion of Rema the wife's contention is to be accepted if accompanied by an express renunciation of her right to the <i>ketubah. Shakh</i> further adds that virginity "two or three years" after the marriage was to have been consummated is in itself deemed sufficient evidence confirming the husband's impotence.
  In the case at hand the husband entered both a counterclaim and a denial. The husband denied his impotence, yet in somewhat of a self-contradiction, he solicited his wife's cooperation in overcoming this deficiency. At the same time, the husband freely conceded his wife's continued virginity but claimed that she had persistently refused to engage in intercourse. In the light of the wife's virginity and since, in her application to the <i>Bet Din</i>, she had expressly waived claim to the <i>ketubah</i> the <i>Bet Din</i> had no difficulty in deciding on behalf of the plaintiff and, accordingly, directed the husband to deliver a <i>get</i> to his wife.
  The case was, however, complicated by a novel factor. The husband introduced medical evidence showing that he suffered no physical deficiency, claimed that he was willing to undergo therapy in order to over-come any functional deficiency and earnestly solicited his wife's cooperation to this end. Although the <i>Bet Din</i> purported to find a contradiction in the husband's statement, it appears that in denying impotence the husband intended merely to deny physical impotence but conceded psychological impotence. This is confirmed by the wife's statement that the husband experienced partial erection followed by premature ejaculation.
  The legal point requiring adjudication is whether impotence resulting from psychological factors, and hence possibly only temporary in nature, is grounds for directing the husband to issue a divorce, or whether the wife may validly be directed to assist in the therapy necessary to overcome this deficiency. The <i>Bet Din</i> ruled that the wife could not be ordered to act against her expressed feelings of repugnance in order to aid in her husband's therapy, particularly in view of the fact that in situations of severe marital discord the assistance of the female partner is not likely to be of avail in overcoming functional sexual deficiency. The <i>Bet Din</i> also ruled that possibility of a future cure does not constitute valid grounds for setting aside a wife's demand for current conjugal fulfillment. A precedent for this decision is found in <i>Teshuvot Rivash</i>, no. 127. <i>Rivash</i>, addressing himself to a situation involving a young couple in which the husband had not been able to consummate the union during eight months of marriage, stated that the bride cannot be forced to continue a relationship which she finds intolerable but that "it is the way of modest daughters of Israel to bear this [and] not to come before a <i>Bet Din</i> to demand the dissolution of the bond."8<i class="footnote">See also Riẓba, Tosafot, Yevamot 85b.</i>
  Although many authorities sanction the use of corporal force in coercing the husband to divorce his wife under such circumstances, the <i>Bet Din</i> did not threaten incarceration in the event of recalcitrance. In declining to threaten imprisonment for failure to follow its directive the <i>Bet Din</i> took cognizance of the dissenting view of <i>Shakh, Gevurat Anashim</i>, no. 42, who follows the position of Rabbenu Hananel in asserting that physical coercion is not warranted in cases of impotence, and the view of <i>Teshuvot Rashbaz</i>, no. 693, who maintains that corporal force is not justified in cases of impotence if the possibility of a cure exists. The opinion of <i>Teshuvot Rashbaz</i> is cited with approval by <i>Teshuvot Maharashdam</i>, I, <i>Even ha-Ezer</i>, no. 103.9<i class="footnote">Although not cited in this decision, <i>Teshuvot Maharalbaḥ</i>, no. 33, similarly advises that a precipitous judgment not be issued in favor of the wife but that action be delayed for a period of “two or three years” in the hope that the condition rectify itself. Cf., however, an earlier decision of the Supreme Rabbinical Court, <i>Piskei Din Batei ha-Din ha-Rabbaniyim</i>, III, 84-85, in which an attempt is made to narrow the disagreement between these authorities and <i>Rivash</i>.</i> The court did, however, levy a judgment for support against the husband in the sum of IL 400 per month until such time as the bill of divorce is executed. In effect, this procedure, which is common and utilized to good effect by Israeli <i>Batei Din</i>, is tantamount to a fine for nonperformance. Desire to avoid financial penalty is usually sufficient motivation to secure compliance with the directive of the <i>Bet Din</i>.
  In reading the decree one is left with the gnawing feeling that had proper psychologial and marital counseling been available this marriage might have been saved. The response of <i>Rivash</i>, written some six hundred years ago, readily supports a directive to attempt such a resolution. Judicial procrastination in an attempt to effect a reconciliation is firmly supported by Rema, <i>Even ha-Ezer</i> 154:7. <i>Teshuvot ha-Rashba</i>, I, no. 628, also urges that attempts be made to eliminate discord and to create an atmosphere in which a normal conjugal relationship is possible and adds that the extent of delay to be allowed for such an endeavor is within the discretion of the <i>Bet Din</i>. It is regrettable that the <i>Bet Din</i>, despite its right, when warranted by Halakhah, to call upon the police power of the State in enforcing judicial decrees, does not have ancillary personnel to deal with psychological and marital difficulties. The circumstances of the case surely point to the desirability of an evaluation by a competent psychologist. Unfortunately, the <i>Batei Din</i> do not effectively draw upon such resources of talent and accordingly, in the case at hand, the <i>Bet Din</i> was able only to affirm the wife's legal right to a divorce and to act decisively in preventing a situation of <i>igun</i>.
  Who Is a Jew?
  The Halakhah with regard to the children of a union between a Jew and a non-Jew is well established. The child acquires the religious status of the mother. "Your son by an Israelite woman is called your son, but your son by a heathen is not called your son, but her son" (<i>Kiddushin</i> 68b). Thus the son of a Jewish mother and a non-Jewish father is a Jew, while the son of a Jewish father and a non-Jewish mother is not a Jew.
  While this is clearly the position of normative Halakhah, in recent years these provisions of Jewish law have been questioned. On the one hand, those who challenge the halakhic process itself advocate a policy of regarding a child of a single Jewish parent—whether mother or father—as a Jew. On the other hand, one rabbinic writer has questioned whether even the child of a Jewish mother and a gentile father can, in every instance, be considered to be a Jew.
  Advocacy of the position that the Jewish identity of either parent is sufficient to confer status as a Jew upon the child is, to a great extent, a product of the pressure generated by intermarried parents who have immigrated to Israel and seek recognition of their children as Jews on the part of the Israeli government. The landmark cases in this area are analyzed in detail in a work aptly titled <i>The Impossible Dilemma</i> (New York, 1976) by Oscar Kraines. In an article which appeared in the Summer 1976 issue of <i>Conservative Judaism</i>, Solomon Goldfarb called for what he candidly termed "a revolutionary change in the law" and a "daring interpretation of the law of conversion" in order to effect the desired recognition of the children of Jewish fathers and non-Jewish mothers as Jews. This proposal, which received widespread coverage in the Anglo-Jewish press, calls for an innovation which is halakhically indefensible. The Palestinian Talmud, <i>Kiddushin</i> 3:12 (and not only the less authoritative <i>Midrash Rabbah</i>, Numbers 19:3, quoted by Goldfarb), does discuss the admissibility of such a view only to reject it peremptorily by pointing to Ezra's insistence upon casting aside not only non-Jewish wives but their children as well. Ezra's rejection of the children of Jewish fathers born of non-Jewish wives is a clear indication of the gentile status of such children. To seize upon random views explicitly refuted in the Talmud itself and rejected by Jewish tradition over the centuries is to make a travesty of the halakhic process.
  The surprising suggestion that even the child of a Jewish mother and a gentile father may not be a Jew was advanced by a member of the Haifa <i>Bet Din</i>, Rabbi Shlomoh Yaluz, in <i>No'am</i>, XIV (5731). While Rabbi Yaluz' thesis cannot, in the final analysis, be accepted as compelling, it is nevertheless based on sources which are entirely germane.
  The Gemara, <i>Kiddushin</i> 75b, records two conflicting opinions with regard to the status of a child born of a Jewish mother and a gentile father. One opinion maintains that the child has the status of a <i>mamzer</i> (bastard); the second opinion, which is accepted as authoritative, recognizes the child as <i>kasher</i> (legitimate). The vast majority of early authorities understand the term <i>"kasher"</i> used in this context as meaning that the child is a Jew of legitimate birth by virtue of having acquired the genealogical status of the mother. However, <i>Tosafot, Yevamot</i> 16b, understands the term <i>"kasher"</i> simply as the antonym of the term <i>"mamzer,"</i> signifying only that the child does not bear the stigma of bastardy. According to <i>Tosafot</i>, this is so precisely because the child is not a Jew. An eighteenth-century commentary on Rambam, <i>Sha'ar ha-Melekh, Hilkhot Issurei Bi'ah</i> 15:3, interprets <i>Tosafot, Kiddushin</i> 75b, in a similar manner, as does the <i>Piskei ha-Tosafot</i>, no. 142, although Maharsha differs. In any event, the view that the child is a non-Jew is clearly a minority opinion, although R. Akiva Eger deemed it to be of sufficient importance to be cited in his commentary on <i>Yoreh De'ah</i> 266:12.
  While he recognizes that the prevailing view is that the term <i>"kasher"</i> means "legitimate Jew," Rabbi Yaluz, in his article in <i>No'am</i>, cites authorities who maintain that the status of such a child as a Jew is, nevertheless, not clear-cut. These authorities maintain that even according to the accepted view that the child of a Jewish mother and a non-Jewish father is deemed to be a Jew of legitimate birth, the Jewishness of the mother does not, in and of itself, automatically guarantee that the child is to be deemed a Jew in the eyes of Halakhah. These authorities adopt a most unusual stance. They maintain that in cases where the father is a non-Jew the child is accorded the status of a Jew only if he "conducts himself as a Jew," otherwise he is deemed to be a non-Jew. In effect, the child of a Jewish mother and a non-Jewish father may elect to acquire the halakhic status of a Jew and is deemed to have done so if he is raised as a Jew and conducts himself accordingly. If the child is raised as a Jew he is not required to undergo a conversion ceremony, as is the case with the issue of a union between a Jewish man and a non-Jewish woman. However, the child of a Jewish mother and a non-Jewish father who is not raised as a Jew is deemed to have renounced his option to acquire the status of a Jew by virtue of birth and would subsequently require a formal conversion ceremony to be considered a Jew. Here, according to these authorities, is an isolated instance in which birth does not confer automatic status as a Jew, but merely provides the option for acquiring Jewish identity. This anomalous thesis is advanced by the sixteenth-century authority, R. Shlomoh Luria, in his commentary on <i>Yevamot</i> 16b. Maharsha, <i>ad locum</i>, sharply contests this view and advances the obvious argument that, axiomatically, matters of personal status are contingent upon parentage alone and cannot be prejudiced by subsequent deportment; a change in status can be effected only by means of formal conversion.
  A view similar to that of Maharsha is formulated in greater detail by Rit Algazi in his commentary on <i>Bekhorot</i> 47a. Rit Algazi explains that a child born of a union between a Jewish mother and a gentile father bears genealogical elements of both Jewishness and non-Jewishness. For this reason, the Gemara, according to the analysis of <i>Tosafot, Bekhorot</i> 47a, speaks of such a child as being "tainted," even though the child is legitimate. He is "tainted," states Rit Algazi, because of the presence of a non-Jewish element which, under certain circumstances, may become dominant. The talmudic statement attesting to the Jewish status of the progeny of a "gentile who consorts with a Jewish daughter" is understood by Rit Algazi as referring to a child born of a casual act of fornication. In such circumstances, it is to be anticipated that a child born of the liaison will remain in the custody of the mother and be raised by her as a Jew. If, however, the father rears the child as a gentile, as is to be anticipated when the parents have established a permanent relationship, the child is retroactively accorded the status of a non-Jew. The verse, "Your daughter you shall not give to his son…. For he will turn away your son from Me and they will serve other gods" (Deuteronomy 7:3-4), which serves as the basis of the talmudic dictum, "Your [grand] son born of an Israelite woman is your son" (<i>Kiddushin</i> 68b) is explained by Rit Algazi as meaning that the child is considered to be a grandson in terms of identity as a Jew only if he is not "turned away" by his gentile father. Scripture, according to this interpretation, admonishes that if the child is reared by a non-Jewish father he will not be accorded the status of a Jew and, hence, will not be deemed to be a grandson.
  R. Isaac Schmelkes, <i>Teshuvot Bet Yizḥak, Even ha-Ezer</i>, I, no. 29, sec. 8, advances an interesting argument in support of this novel thesis. <i>Rosh ha-Shanah</i> 3b identifies Cyrus as being one and the same person as Darius and speaks of this person as being a righteous king, but as being non-Jewish. <i>Tosafot</i> indicates that this historical personality is the very Darius described as the son of Queen Esther. If so, an obvious question presents itself. Although Darius was the son of Ahasuerus, he should have been deemed to be a Jew by virtue of being born of a Jewish mother. According to Rit Algazi, the problem is resolved if it is understood that he was raised as a non-Jew by Ahasuerus. Nevertheless, <i>Bet Yizḥak</i> refrains from endorsing Rit Algazi's position since it is contradicted by so many authorities.
  Another authority who maintains that the child of a Jewish mother born of a non-Jewish father requires conversion is R. Ya'akov of Lissa, as stated in a responsum addressed to R. Shlomoh Zalman Lipschitz of Posen, published in the latter's <i>Hemdat Shlomoh, Even ha-Ezer</i>, no.2, and quoted by <i>Pitḥe Teshuvah, Even ha-Ezer</i> 4:1. Moreover, R. Ya'aḳov of Lissa advances the novel view that such a child, subsequent to conversion, is different from ordinary converts in that he is forbidden to marry a <i>mamzer</i> and that, if a first-born, he must be redeemed subsequent to conversion. This position is predicated upon the rationale that prior to conversion the child has the status of the father but that, upon conversion, the child is not like a "newborn baby," but rather acquires the status of the Jewish mother. Although supported by <i>Torat Hesed</i>, II, no. 3, sec. 7, this view is rejected by <i>Teshuvot Hemdat Shlomoh</i>, no. 3, and <i>Hazon Ish, Even ha-Ezer: Nashim</i>, no. 6, sec. 7.
  The unusual view advanced by these authorities is, for the most part, either ignored or dismissed out of hand by later scholars. Thus, for example, the late R. Dov Berish Weidenfeld, popularly known as the Tchebiner Rav, <i>Dovev Mesharim</i>, I, no. 7, sec. 3, cites this view and dismisses it as being "without a source," adding that "it is evident …that [the child] does not require conversion."
  Some measure of credence has, however, been given to this position within the very limited context of circumcision on <i>Shabbat. Maharam Schick</i>, no. 20; <i>Nediv Lev</i>, III, no. 32; and R. Ovadiah Hadaya, <i>Yaskil Avdi</i>, V, no. 47, rule that a child born to a Jewish woman and a gentile father should not be circumcised on <i>Shabbat</i> since, according to some authorities, the child is not a Jew.10<i class="footnote">R. Joshua Falk, <i>Derishah, Yoreh De‘ah</i> 266:5, cites and refutes a similar view.</i>
  This opinion is expressed as a stringency with regard to Sabbath observance and does not reflect a normative rejection of the child's status as a Jew.
  The overwhelming majority of halakhic authorities including <i>Pitḥei Teshuvah, Yoreh De'ah</i> 266:14; <i>Hemdat Shlomoh, Even ha-Ezer</i>, no. 3; <i>Avnei Nezer, Even ha-Ezer</i>, I, no. 16; <i>Maharam Schick, Even ha-Ezer</i>, no. 20; <i>Naḥal Eshkol</i>, III, p. 133; as well as <i>Dovev Mesharim</i>, I, no. 7, clearly affirm that the child of a Jewish mother and a non-Jewish father is, in all instances, deemed to be a Jew. In view of these definitive opinions Rabbi Yaluz' call for a review of the status of such children by the Chief Rabbinate of Israel and the Supreme Rabbinical Court has little merit and is ill-advised.
  
  Chapter V Education
  
  <i>Indeed that man is remembered for good! Joshua ben Gamala is his name. If not for him the Torah would have been forgotten by Israel… [he] came and ordained that they establish teachers of children</i>.
  BABA BATRA 21a
  From time immemorial, Judaism has manifested a concern for education bordering on the obsessive. Abraham is described as worthy of divine favor "For I have known him to the end that he may instruct his children and his household after him, that they keep the way of God, to do righteousness and justice" (Genesis 18:19). Loyalty to the traditions of Judaism in adulthood can be assured only if proper training is provided during formative years. As expressed by King Solomon, "Train a child in his way and even when he is old he will not depart from it" (Proverbs 22:6).
  Education is frequently regarded as instrumental in nature, i.e., a process of acquiring knowledge and skills to be utilized for specific purposes. Judaism recognizes two distinct forms of religious education. One is <i>ḥinnukh</i>, a concept which is more accurately rendered as "training"; the second is study and acquisition of knowledge. The instrumental value of the latter is incontrovertible. A child who has not been instructed in the laws of <i>tefillin</i> will lack the knowledge necessary for proper performance of the <i>mizvah</i>. Nevertheless, the obligation to teach Torah to children is far more encompassing in nature. The verse "And you shall teach them to your sons" (Deuteronomy 11:19) establishes not simply an obligation to teach children so that they be enabled to perform <i>mizvot</i>, but is an intrinsic component of the <i>mizvah</i> of <i>talmud Torah</i>. A Jew is obligated to teach his son Torah just as he is obligated to study Torah himself. Just as one's own study of Torah is an end in itself, so also is the teaching of Torah to children an end in itself. Study of Torah is not merely a means to observance but in itself constitutes the greatest and most profound of <i>mizvot</i>. Thus the obligation of <i>talmud Torah</i> mandates the study and teaching of all aspects of Torah, including even the study of subject matter pertaining to <i>mizvot</i> which cannot be observed in our time.
  <i>Hinnukh</i> or training with regard to <i>mizvot</i> entails "training" in the performance of <i>mizvot</i> by means of actual practice. In order to satisfy the obligation of <i>ḥinnukh</i> the child must perform the <i>mizvah</i> in precisely the same manner in which an adult is required to perform the act in order to discharge his obligation. Teaching a kindergarten student to recite the <i>kiddush</i> during the course of a Friday morning <i>Shabbat</i> party or to conduct a model <i>seder</i> prior to the holiday no doubt serves a valid pedagogical purpose but nevertheless fails to satisfy the requirements of the <i>mizvah</i> of <i>ḥinnukh. Hinnukh</i>, in its essence, is a "dress rehearsal" requiring all the accoutrements of an actual performance. Thus a child who has reached the appropriate age for training in performance of the <i>mizvah</i> of the four species must be given a kosher <i>etrog</i> on <i>Sukkot</i>, not a lemon or even a hybrid citron (<i>murkav</i>). Similarly, a child being trained to recite the <i>shema</i> must be instructed to recite the <i>shema</i> at an appropriate hour rather than after the time period during which the <i>shema</i> must be recited has elapsed.
  Cheating
  An eloquent and refreshing statement on the issue of dishonesty in the taking of examinations appears in a short essay in the Tammuz 5736 issue of <i>Shma'atin</i>, an Israeli journal devoted to the discussion of topical issues in the field of education. This item was authored by Tziporah Wieder, then a ninth grade student of the Ulpana school in Kfar Pines. This school is the only educational institution in Israel which operates on the honor system. Even the all-important <i>bagrut</i> or baccalaureate examinations, upon which university admission hinges, are administered in this school by the Ministry of Education in accordance with the honor system.
  Writing in the middle of her ninth year of school, her first in Ulpana, Miss Wieder reflects upon the difficulties encountered by herself and her peers in making the transition from an elementary school in which an entirely different atmosphere prevailed. In retrospect, wonders Miss Wieder, how was it possible for the students in a religious school to engage in copying and falsification? How did the students rationalize and justify their conduct to themselves? This student quite cogently points out that cheating involves not simply a breach of academic discipline but transgressions of Halakhah as well.
  The concerns expressed by this young student are, to this writer's knowledge, reflected in only one formal rabbinic responsum. The question of the permissibility of engaging in various forms of intellectual chicanery, including the copying of answers to examination questions and plagiarism, is examined by Rabbi Menasheh Klein, <i>Mishneh Halakhot</i>, VII, no. 275. [Rabbi Klein carefully prefaces his answer with a caveat indicating that his reply to the question of cheating should not be construed as endorsement of secular studies.]
  Rabbi Klein observes that cheating involves two specific infractions of Jewish law. Such conduct, it may be argued, is akin to <i>genevat da'at</i>, a term which connotes "theft of mind" but which is more accurately rendered as "misrepresentation." Shulḥan Arukh, Hoshen Mishpat 228:6-7, presents a description of specific activities which are deemed to be "theft" of this nature even though no one suffers a pecuniary loss as a result of such actions. Secondly, this type of misrepresentation may readily result in fraud in the fundamental sense of the term. Grades earned in courses serve to indicate proficiency in the subject matter and to determine eligibility for scholarships. Moreover, it is assumed that an academic record reflects a level of competence which may be relied upon in determining whether the graduate is qualified to hold a position for which remuneration is paid. Frequently, the scholastic record may serve to establish the level of compensation as well. An employer who, on the basis of grades earned, assumes that an employee has attained a level of competence which the employee has, in fact, not attained has been defrauded. An employer who pays a premium for the services of an employee on the basis of academic honors which, in turn, are based on grades, had been cheated if the employee has not indeed reached the level of proficiency associated with such honors. In such cases, argues Rabbi Klein, not only has the student who has engaged in cheating committed a moral offense, but the employer, or the grantor of a scholarship, has an actionable claim for recovery of funds obtained by means of fraud.
  Miss Wieder raises an additional problem not mentioned by Rabbi Klein. This student points out that teachers are employed to serve as proctors during examinations. A teacher who is not vigilant in assuring honesty on the part of the examinees—or worse, one who tacitly condones dishonest conduct—accepts payment for services which have not been rendered. This, too, is a form of theft.
  To these arguments there should be added an additional consideration of paramount significance. When students or graduates of religious institutions engage in academic dishonesty of whatever form, their actions entail the gravest of all transgressions, namely, <i>ḥillul ha-Shem</i>, or profanation of the Divine Name. Rambam, <i>Hilkhot De'ot</i>, chapter 6, clearly indicates that any form of conduct which reflects negatively upon students of Torah constitutes an act of <i>ḥillul ha-Shem</i>. Bringing disrepute upon Torah scholars is tantamount to bringing disrepute upon the Torah itself. Certainly, with regard to this provision of Jewish law, all students are to be considered "scholars" regardless of their level of erudition. The unethical actions of any Torah student redounds to the discredit of the entire Torah community and hence each and every student must be held to exemplary standards of conduct.
  Teachers' Unions
  A decision of the Rabbinical Administrative Board of Torah Umesorah, the National Association of Yeshivot and Day Schools, prohibiting teachers from joining national labor unions has been disseminated widely. The statement, which is entirely declarative in nature and contains neither an analysis of halakhic issues nor citation of precedents, has evoked much comment. This pronouncement, dated 2 Kislev 5741, is particularly note-worthy since R. Moses Feinstein, honorary chairman of the Rabbinical Administrative Board, in his <i>Iggerot Mosheh, Hoshen Mishpat</i>, no. 59, has sanctioned strike action by Yeshivah and Day School teachers, at least under certain limited circumstances.
  It is a well-established principle of Jewish law that the residents of any town may promulgate rules and regulations for the common benefit of the townspeople. <i>Rosh, Baba Batra</i> 1:33, states that members of a particular profession or craft may establish regulations which are binding upon all such professionals or artisans. The members of such professions or crafts are deemed to be "townspeople" entitled to exercise coercive power upon members of their own "society" for the common benefit. This principle is recorded by <i>Rambam, Hilkhot Mekhirah</i> 14:10 and Shulḥan Arukh, Hoshen Mishpat 231:28. Hence, persons engaged in a common trade or profession are entitled to unionize and to impose organizational discipline upon one another. Moreover, when acting in a representative manner on behalf of all persons engaged in a given occupation, not only is a union entitled to engage in strike action but it may also legitimately forbid both its own members and outsiders from acting as strikebreakers.
  Persons earning a livelihood from the teaching of Torah, argues Rabbi Feinstein, are in a somewhat different position. The compensation of such persons is not in the form of a fee for services rendered but payment in lieu of not engaging in some other remunerative activity (<i>sekhar batalah</i>). Teachers who are underpaid might well seek other employment, but in the event of their not being otherwise gainfully occupied, the obligation of teaching Torah falls upon their shoulders even during a strike period. Since teachers must teach even when on strike, the net result, according to Rabbi Feinstein, is to nullify the very concept of a strike. Although it is clear that when not engaged in earning a livelihood every person is obligated both to study and to teach Torah, Rabbi Feinstein does not address the question of whether teachers might not "strike" and spend the time as volunteers teaching Torah in other institutions or in faculty seminars teaching one another. Nor does he raise the question of whether striking teachers might not be permitted to offer to conduct classes in their own homes since it is not clear that the obligation to teach Torah obliges the teacher to spend either the time or the carfare required for him to travel to his students.
  Rabbi Feinstein does advance one further significant consideration. Society has an obligation to provide for the Torah education of children. Although, intrinsically, the teacher has no greater obligation in this regard than does any other member of the community, nevertheless, in accepting employment, he has accepted delegation of this responsibility. Therefore, opines Rabbi Feinstein, the teacher may not withdraw, even for purposes of earning a livelihood in some other fashion, unless he provides a suitable replacement.
  Despite these considerations, Rabbi Feinstein maintains that strike action is warranted under certain conditions, namely, when the level of compensation is so low that the teachers are not able to fulfill their responsibilities properly. Under such circumstances, if a strike will succeed in producing the necessary remedy, teachers are justified in suspending instruction temporarily in order that ultimately Torah study be maximized and enhanced. Such a determination, Rabbi Feinstein cautions, can be made only upon careful assessment of all factors and should be considered only as a last resort.
  The propriety of strike action by Yeshivah teachers is also discussed in the course of a wide-ranging decision of a Tel Aviv Rabbinical Court, <i>Piskei Din shel Batei ha-Din ha-Rabbaniyim</i>, VIII, 160-161. In its decision, the <i>Bet Din</i> cites the above mentioned responsum of Rabbi Feinstein, but places even heavier emphasis upon the consideration that work stoppage on the part of Yeshivah teachers must inevitably lead to <i>bittul Torah</i>, i.e., disruption of Torah study, which, in and of itself, is a serious transgression.
  When strike action is warranted, Rabbi Feinstein rules that teachers are entitled to payment for the period during which they performed no teaching services. Although he does not explicitly state the basis for such a claim on the part of striking teachers, it must be remembered that, essentially, they are paid, not for teaching, but for refraining from pursuing other means of earning a livelihood. Teachers who strike solely in order to make it possible for them to be able to discharge their duties adequately are indeed fulfilling their duty and, it may be argued, if not otherwise gainfully employed during the strike period, are entitled to compensation. Rabbi Feinstein further advises that striking teachers be paid for time missed even when the strike cannot be justified in accordance with Halakhah. It may be presumed, says Rabbi Feinstein, that teachers who strike are driven to such action by "pain and poverty." Since their intentions are unexceptionable, it is only equitable that they not be penalized financially.
  In light of this published responsum it is clear that the Torah Umesorah proclamation is not directed against unionization per se but against membership in national unions whose actions and policies are not governed by halakhic considerations and constraints. Indeed, the text of the document bans affiliation solely with "secular" labor unions. Moreover, the same document calls for the formation of an <i>"Irgun ha-Morim"</i> (Teachers' Organization) under the aegis of Torah Umesorah for the purpose of "advancing the status of Yeshivah teachers materially and professionally." Such a body would undoubtedly enjoy the prerogatives which Jewish law conveys upon craft guilds and, to all intents and purposes, would function as a union without affiliation with any secular group.
  Privacy of Personal Correspondence
  In recent years a number of Supreme Court court decisions have been issued which serve to establish the right to privacy as one of the human freedoms guaranteed by the American constitution. The newly-developed constitutional right to privacy is the right of immunity from governmental interference in one's private affairs, unless legitimate state interests are at stake. There exists no concomitant constitutional right to privacy vis-à-vis the private acts of fellow citizens, although actions harmful, or potentially harmful, to others are forbidden by law.
  Jewish law, by means of rabbinic legislation, has adopted certain specific measures in order to safeguard the individual's right to privacy. The most obvious example is the talmudic requirement that a wall be erected between adjacent courtyards in order to assure that the residents of each courtyard may enjoy unencumbered privacy. Another example is the well-known post-talmudic ban of Rabbenu Gershom forbidding the reading of another person's mail without permission. This edict is cited by <i>Be'er ha-Golah, Yoreh De'ah</i> 334:123. <i>Sefer ha-Leket</i>, I, no. 173, declares that Rabbenu Gershom's ban is based upon the admonition, "You shall not go as a talebearer among your people" (Leviticus 19:16). The prohibition against talebearing, argues <i>Sefer ha-Leket</i>, is equally applicable whether the bearing of tales is directed to another person or to oneself. Intercepting another person's private correspondence is, in effect, bearing tales, i.e., divulging another person's private affairs to oneself.
  There are, however, very few rights, if any, which are absolute in nature. Rights must perforce yield to superseding interests and considerations. It is necessary to determine what, if any, are the limitations upon the right of privacy as recognized in Jewish law. The possibility of at least one interesting limitation with regard to the privacy of one's correspondence is discussed in the Adar II and Tammuz 5736 issues of <i>Shma'atin</i>. Teachers and counselors, at times, have reason to suspect that their charges are engaging in activities detrimental to their moral development but find themselves unable to deal with the situation effectively because of lack of concrete factual information. In some situations the educators have reason to believe that the desired information might be gleaned from mail received by their students. They are, however, understandably reluctant to tamper with the correspondence of their charges because it would appear that the privacy of such communications is protected and rendered inviolate by virtue of the ban promulgated by Rabbenu Gershom. The editors of <i>Shma'atin</i>, therefore, turned to Rabbi David Halevi, Sephardic Chief Rabbi of Tel Aviv, and solicited his opinion with regard to the halakhic permissibility of intercepting and reading the mail of students for the express purpose of preventing moral infractions. Rabbi Halevi's response appears in the Adar II issue of that publication.
  Rabbi Halevi argues that the resolution of the question addressed to him hinges upon whether or not the ban of Rabbenu Gershom bears the weight of law even in situations in which its enforcement will entail nonperformance of a <i>mizvah</i>. A precedent is found with regard to the application of another edict issued by Rabbenu Gershom, viz., the well-known ban against polygamy. Despite Rabbenu Gershom's edict against plural marriages, Shulḥan Arukh, Even haEzer 1:9, rules that a married man may take as a wife the widow of a brother who has died childless. The explanation advanced is that Rabbenu Gershom's edict was not intended to extend to situations which would result in nonperformance of a <i>mizvah</i>. In the case discussed by <i>Shulhan Arukh</i> the <i>mizvah</i> of levirate marriage would be abrogated if the ban against polygamy were to be enforced. Rema, however, appends a gloss in which he cites authorities who maintain that Rabbenu Gershom's ban encompasses such situations as well. Rabbi Halevi argues that, according to <i>Shulḥan Arukh</i>, not only is the ban against polygamy suspended in such situations, but that all edicts issued by Rabbenu Gershom are suspended in face of the necessity of fulfilling a <i>mizvah</i>. Rabbi Halevy further argues that even those authorities who dissent—as cited by Rema—do so only with regard to situations in which obedience to the edict results merely in passive nonfulfillment of a <i>mizvah</i> but that all authorities are in agreement that the edict is suspended if the action in question is necessary to prevent an overt transgression. Accordingly, Rabbi Halevi permits the opening of letters when such action is absolutely necessary to prevent untoward conduct on the part of the student.
  The Tammuz issue of <i>Shma'atin</i> contains a concurring opinion authored by Rabbi Eliezer Katz. Rabbi Katz offers a further argument bolstering this position. A person who smites a fellow Jew transgresses a negative commandment as recorded by Rambam, <i>Hilkhot Hovel u-Mazik</i> 1:1. Nevertheless, a father who smites a child or a teacher who smites a pupil for purposes of reproving him and correcting his conduct may not only do so with impunity, but the action is deemed to be a <i>mizvah</i>.1<i class="footnote"><i>Makkot</i> 8b.</i> In effect, Rabbi Katz argues that assault is an infringement of the right to privacy of one's person. Since the biblical right to privacy of one's person is suspended in face of overriding pedagogical considerations, <i>a fortiori</i>, the rabbinic right to privacy of correspondence is suspended in the presence of identical considerations.
  In a short note appended to the article, the editor of <i>Shma'atin</i> cites R. Chaim Pelaggi, <i>Hikekei Lev</i>, I, <i>Yoreh De'ah</i>, no. 49, who asserts that it is permissible to open a letter in order to obtain information necessary to prevent financial loss. By the same token, he argues, it is permissible to open a letter in order to prevent moral and spiritual loss to the recipient.2<i class="footnote">In point of fact, the editor’s statement is somewhat inaccurate. <i>Ḥikekei Lev</i> does not unequivocally sanction tampering with correspondence in order to prevent financial loss; he states <i>“yesh ẓedadin le-ka’n u-le-ka’n</i>—there are arguments which may be advanced in support of both sides of the question.”</i>
  Rabbi Halevi concludes his responsum by questioning whether the same corrective measures might not be taken even in the absence of information gained in this manner and indicates that if such corrective measures might indeed be instituted, in any event, the right to privacy with regard to correspondence must be regarded as being inviolate. He further admonishes that any information obtained in this manner may not be divulged to other persons.
  To this a further comment must be added. Procedures involving violation of privacy are likely to be counter-productive. To be successful in their efforts, educators must gain and retain the confidence and trust of their students. It is virtually impossible to impart ethical sensitivity while employing means which are themselves perceived by students as being unethical in nature. It is a commonplace truism that not every procedure which is permissible should be pursued. In this instance, since such a course of action is sanctioned only as a means of achieving a higher goal, the inefficacy of the theoretically permissible renders such a course of action impermissible in practice.
  Expulsion of Students
  The Heshvan 5736 issue of <i>Shma'atin</i> contains a discussion by Rabbi Zevi Sloucz regarding the circumstances which warrant expulsion of a student or refusal on the part of a school to accept a potential student. Principals of Yeshivot and Day Schools often experience a dilemma when confronted by students or applicants who are of questionable moral character or who are nonobservant. Outside of the educational framework of such schools there is little hope that character or behavior patterns will change in a material way. On the other hand, such students may well serve as a negative influence within the school with disastrous consequences for other pupils.
  Rambam, Hilkhot Talmud Torah 4:1, rules that one may teach Torah only to a student of good moral character who comports himself in a decorous manner or to a "simple" student. At the same time, Rambam rules that a student who is found lacking in this regard is not to be rejected out of hand. On the contrary, Rambam emphasizes that such a student should be corrected and given moral training; but only subsequently may he be taught Torah. This ruling is based upon a discussion in <i>Berakhot</i> 28a. While serving as head of the academy, Rabban Gamaliel posted a doorkeeper at the entrance whose task it was to deny admission to students whose moral or religious credentials were subject to question. Upon the appointment of R. Eleazar ben Azariah as successor to Rabban Gamaliel, the doorkeeper was removed. The result was an immediate and vast increase in enrollment. According to one opinion recorded in the Gemara, 400 seats had to be added to the House of Study; according to another opinion, 700 seats had to be added.
  Commentaries on the <i>Mishneh Torah</i> explain that both Rabban Gamaliel and R. Eleazar ben Azariah agreed that a student of ill repute should not be accepted. They disagreed only with regard to acceptance of a student of unknown character. Rabban Gamaliel demanded evidence of probity, while R. Eleazar was amenable to accepting any student as long as there was no negative information regarding his character. According to these commentaries, Rambam rules in accordance with the opinion of R. Eleazar ben Azariah and hence permits the teaching of Torah to a "simple" student. These commentators understand the word "simple" (<i>tam</i>), employed by Rambam in this context, as denoting a person of unknown moral character. Other authorities understand the term as referring to a person of neutral moral character, i.e., a person lacking exemplary character traits, but one who has not developed negative traits.
  Rabbi Sloucz points to the apparently contradictory dictum of <i>Bet Hillel</i> recorded in <i>Avot de-Rabbi Nathan</i> 9:9: "One should teach everyone for there were many transgressors among Israel who were brought close to the study of Torah and righteous, pious and worthy [individuals] emerged from among them." <i>Bet Hillel</i>, in apparent contradiction to the position of R. Eleazar ben Azariah, quite obviously favored instruction for all. <i>Midrash Shmuel, Avot</i> 1:1, endeavors to resolve the discrepancy between the position of <i>Bet Hillel</i> and that of R. Eleazar ben Azariah by explaining that <i>Bet Hillel</i> did not advocate admission of transgressors to the academy. On the contrary, they advocated instruction for such individuals only outside of the basic educational system. In the words of the Mishnah, <i>Bet Hillel</i> "established many students" but they also "made a fence for the Torah." <i>Midrash Shmu'el</i> explains the latter phrase as meaning that, although <i>Bet Hillel</i> were willing to teach everyone, they insisted upon a "fence" between various groups of students, i.e., they insisted upon separate instruction for unworthy students.3<i class="footnote">Cf., <i>Magen Avot</i> and <i>Petaḥ Einayim</i>, ad loc.</i> The words of <i>Bet Hillel</i>, observes Rabbi Sloucz, are the source of Rambam's concluding statement which advises that students of less than exemplary character be given remedial moral and religious training.
  In an earlier article on the same subject, which appeared in the 5730 issue of <i>Niv ha-Midrashiyah</i>, Rabbi David Werner similarly concludes that all are in agreement that a student of degenerate character may be expelled. Rabbi Werner, however cites Maharasha, <i>Berakhot</i> 28a, who maintains that Rabban Gamaliel demanded evidence of "fear of Heaven" or, in the words of the Gemara, that the student be of unimpeachable sincerity, "his interior as his exterior" (<i>tokho ke-baro</i>). It was only with regard to a student lacking "fear of Heaven," or sincerity of commitment, that R. Eleazar ben Azariah disagreed and was willing to grant admission. R. Eleazar ben Azariah, according to this analysis, maintained that a student might be excluded only on the basis of negative conduct, but not because of lack of commitment. Use of the term "simple" by Rambam, declares Rabbi Werner, indicates that the student's internal motivation and commitment need not be examined; as long as his conduct and deportment is moral and beyond reproach he may be instructed in Torah.
  Noteworthy are the comments of <i>Shulḥan Arukh ha-Rav, Hilkhot Talmud Torah, kuntres aḥaron</i>. Noting Rambam's ruling that a student of poor character should not be taught Torah but should first be corrected, <i>Shulḥan Arukh ha-Rav</i> adds the comment that this principle applies only if exclusion from Torah study will aid in effecting a transformation of character. If, however, exclusion will not effect a transformation of character, even though the student is unworthy, he may be taught Torah.
  In yet another article dealing with this subject published in <i>Niv ha-Midrashiyah</i>, 5730, Rabbi Chaim Naftalin relates that <i>Hazon Ish</i> declared in an oral ruling that the restrictions against teaching Torah to unworthy students do not apply in our day. In earlier times, declared <i>Hazon Ish</i>, expulsion from the House of Study was itself a corrective measure. Such ostracism would prompt a student to mend his ways. In our day, counseled <i>Hazon Ish</i>, such a policy is likely to confirm the student in his evil ways and cause him to stray even further.
  Rabbi Werner advances a similar explanation in resolving the earlier noted discrepancy between the dictum of <i>Bet Hillel</i> and the view of R. Eleazar ben Azariah. Rabbi Werner maintains that the counsel of <i>Bet Hillel</i>, who advocated teaching Torah even to transgressors, was formulated for historical epochs in which other methods would be of no avail. At such times the only way to influence students is directly through the teaching of Torah. Under such conditions the restrictions posited by Rabban Gamaliel and R. Eleazar ben Azariah do not apply.
  A student may legitimately be expelled, not only because of moral infractions, but also because of a breach of school discipline, since such conduct is likely to have a negative pedagogic effect upon other students. As is reported in <i>Horiyot</i> 13b, R. Meir and R. Nathan were expelled from the House of Study precisely because of such considerations. According to the explanation of Rabbenu Gershom, <i>Baba Batra</i> 23a, R. Jeremiah was expelled for like cause. <i>Sefer Hasidim</i>, no. 187, states explicitly that a student whose presence is disruptive should be expelled lest he "do harm to others."
  Although he fails to adduce compelling evidence in support of his view, Rabbi Werner makes a distinction between young students and students of a mature age. In his view, young children should be accepted as students even if their conduct is unseemly, provided that they do not exercise a negative influence upon other students. According to Rabbi Werner, the qualifications posited for receiving Torah instruction and the dispute between Rabban Gamaliel and R. Eleazar ben Azariah with regard to such qualifications are limited to mature students. On the basis of Rambam, Hilkhot Talmud Torah 2:2, Rabbi Werner defines a "young" student as a student below the age of twenty-four or "perhaps" as below the age of sixteen.
  Rabbi Katriel Tchursh, <i>Keter Efrayim</i>, no. 51, reaches a conclusion essentially identical to that of Rabbi Werner. Rabbi Tchursh advises that nonobservant children be accepted as students providing that they do not manifest a disdainful and disparaging attitude.
  Damages to School Property
  The Tammuz 5736 issue of <i>Shma'atin</i> contains a short item by Rabbi Shlomoh Min-Hahar dealing with liability for damage to school property caused by students. Although there is nothing novel in this discussion it merits note simply by virtue of the fact that the issue is one which is raised with some frequency.
  <i>Baba Kamma</i> 87a establishes quite clearly that children below the age of halakhic maturity (thirteen in the case of boys, twelve in the case of girls) cannot be held liable for tort damages. A minor does not incur liability for his actions. Therefore, individuals who have caused personal or property damage while yet minors cannot be held responsible for compensation even after they have reached the age of legal capacity. This is true not only with regard to damage caused inadvertently but also with respect to acts of vandalism. However, the liability of children who have reached the age of halakhic maturity is exactly the same as that of adults committing the same acts, although adolescents may well not have independent financial resources which may be used to satisfy a claim. Halakhah recognizes no responsibility on the part of parents to compensate for damages caused by children of any age.
  Rambam, in his <i>Commentary on the Mishnah, Baba Kamma</i> 8:4, does, however, declare that the courts are empowered to punish and chastise minors in order to prevent future acts of an anti-social nature. As Rabbi Min-Hahar points out, this authority is derived from the power to preserve the social order which is vested in the <i>Bet Din</i>. Teachers and school authorities do not exercise such power. They are, however, charged with the education of their students. It is incumbent upon them to instill moral values no less than to impart academic knowledge. In order to achieve these objectives they are empowered to utilize appropriate disciplinary measures. They are, therefore, entitled to impose nonmonetary punishment if, in their opinion, there exists a pedagogic reason for doing so.
  
  Chapter VI Business and Commerce
  
  <i>when man is led to judgment he is asked, "Have you dealt honestly in business?"</i>
  SHABBAT 31a
  Judaism fails to recognize a dichotomy between criminal law and jurisprudence. All private wrongs are viewed as trespasses against God. Conversion of funds or property belonging to another to one's own use or failure to deliver monies due another person, constitutes not only a wrong against a fellow man but a transgression against God as well. In adjudicating a claim between litigants, the <i>Bet Din</i> acts not simply to determine rightful ownership but to assure fulfillment of a religious obligation. The Gemara, <i>Sanhedrin</i> 6b, citing the verse "And David performed justice and charity unto all his people" (II Samuel 8:16), points out that justice and charity are disparate concepts. King David in his capacity as chief magistrate was certainly expected to dispense justice. But a just decree awarding a plaintiff that which is lawfully his is hardly an act of charity. By the same token, an act of charity is categorized as such precisely because it is not the product of a legal obligation. The Gemara proceeds to explain that a just verdict requiring payment or restitution does simultaneously represent justice for the plaintiff and charity vis-à-vis the defendant: "Justice to the one for having returned his money, and charity to the other for delivering the theft out of his hand." The <i>Bet Din</i> provides a service not only to the litigant who prevails but also performs an act of compassion on behalf of the loser in preserving him from transgression. In the same vein, the Gemara, <i>Sanhedrin</i> 7a, remarks, "Let him whose cloak the <i>Bet Din</i> has taken away sing a song and go on his way."
  "Repayment of a creditor is a <i>mizvah,"</i> declares the Gemara, <i>Arakhin</i> 22a. If so, queries Rav Kahana, what if the debtor says, "I do not want to perform the <i>mizvah"</i>? Rav Papa responds by pointing out that the <i>Bet Din</i> is empowered to use coercive measures in order to secure compliance with religious obligations. This talmudic exchange presents not only a novel view of the role of the <i>Bet Din</i> but also underscores the nature of financial obligations. The court, in enforcing its decree, is not primarily concerned with enforcing the rights of the creditor but with compelling the debtor to perform his duty. The coercive power of the <i>Bet Din</i> is derived from its duty to command specific performance of religious obligations. Its concern is with the religious and spiritual well-being of the parties which can be assured only if ethical obligations are fulfilled. Of course, the effect is to restore money or property to the party lawfully entitled thereto, but rectification of the financial issue is almost incidental to securing compliance with norms of ethical conduct.
  It is, therefore, not at all surprising that in Jewish teaching there is no sharp distinction between law and ethics. In business and commerce a Jew must examine a proposed course of action, not in terms of whether or not it may give rise to litigation, but in terms of its intrinsic ethical propriety. There are numerous situations in which Halakhah rules that a matter is not actionable before human courts but that, nonetheless, an obligation for compensation does exist in the eyes of Heaven. The very concept of a situation in which one is "exempt according to the laws of man but liable according to the laws of Heaven" reflects the acknowledgment that financial matters, no less than ritual observances, are governed by divine law. A pious Jew must be no less scrupulous with regard to the money which he deposits in his pocket than with regard to the food which he places in his mouth.
  Copyright
  Common law recognizes an author's proprietary interest in his work and protects him against unauthorized publication. Copyright laws in virtually all countries spell out an author's rights subsequent to publication, and indicate when and under what circumstances a published work enters the public domain. Jewish law with regard to an author's proprietary interest in his published or unpublished work is far from unequivocal. A survey of the literature on this topic is presented by Rabbi Samuel Rubenstein in the 5737 issue of <i>Torah she-be-'al Peh</i>. This topic is also the subject of a monograph by Rabbi Nahum Rakover entitled <i>Mekorot le-Ikaron Zekhut ha-Yozrim</i>, published by the Ministry of Justice of the State of Israel (Jerusalem, 5730).
  The earliest references to this matter in rabbinic literature focus upon ascription of authorship rather than upon proprietary rights and the concern expressed is for recognition of intellectual prowess rather than protection of pecuniary interests. Thus, <i>Avot</i> 6:6 declares that one who repeats a halakhah or insight in the name of its original exponent brings salvation to the world. This doctrine is supported by the verse "… and Esther told the king in the name of Mordecai" (Esther 2:22). Esther's report to Ahasuerus in the name of Mordecai set in motion a train of events which led to the salvation of the Jewish people. An even stronger statement establishing an absolute obligation to acknowledge the source of scholarly insights is found in a midrashic statement recorded in <i>Tanḥuma, Parashat Bamidbar</i>, 22, and in <i>Yalkut Shim'oni</i>, Proverbs 22:22, and cited by Magen Avraham, Oraḥ Hayyim 156:2: "One who does not repeat a matter in the name of the person who said it transgresses the negative commandment 'Rob not the weak because he is poor (Proverbs 22:22).' "
  Nevertheless, when proper credit is given, permission need not be sought to repeat the insights of a scholar. The Tosefta, <i>Baba Kamma</i> 7:3, speaks of such conduct as "theft" but as being a meritorious practice nonetheless. The Tosefta declares, "But one who stealthily places himself behind a scholar and then goes and teaches [the scholar's] lesson, even though he is called a thief, acquires merit for himself as it is said 'They do not despise a thief if he steals to satisfy his soul (Proverbs 7:30).' In the end he will be appointed an official over the community and will bring merit upon the multitude and merit upon himself." <i>Shakh, ḥoshen Mishpat</i> 292:35, cites this source as providing justification, not simply for freely quoting a scholar's novellae but as establishing license for copying them for personal use without permission. It would appear to this writer that these sources also provide justification for recording Torah lectures without obtaining prior permission of the lecturer. Indeed, the lecturer would not ordinarily have justifiable grounds upon which to withhold such permission.1<i class="footnote">See also, R. Abraham Price, <i>Sefer Ḥasidim im Mishnat Avraham</i>, II, 75; cf., however, R. Menasheh Klein, <i>Mishneh Halakhot</i>, VII, no. 273. R. Moses Feinstein, in his recently published <i>Iggerot Mosheh, Oraḥ Ḥayyim</i>, IV, no. 40, sec. 19, rules that a lecturer may justifiably ban the taping of his lecture if the subject matter is such that “it should not be transmitted to one and all;” if it includes halakhic pronouncements which, although correct in theory, are in the category of rulings which it is not proper to publicize (<i>halahkah ve-ein morin ken</i>); or if the instructor is unsure of his analysis or conclusion and hence presents his material only in a tentative manner since in such circumstances “the teacher has reason to fear that his words are not correct and he may be embarrassed.”</i>
  Nevertheless, <i>Teshuvot ha-Rif</i>, no. 133, cited by <i>Teshuvot ha-Rashba</i>, VI, no. 286, rules that it is forbidden to appropriate a scholarly work for purposes of reproduction. <i>Sedei Hemed, Pe'at ha-Sadeh, ma'arekhet ha-gimel</i>, no. 5, cites a scholar who deemed <i>Teshuvot ha-Rif</i> to be in contradiction to the earlier cited statement of the Tosefta. It would appear, however, that the Tosefta can be adduced only in support of permission to appropriate the scholarly content of a work but not to steal the book itself. A scholar lacks title to his scholarly insights but certainly does retain title over his manuscripts. No material object may be removed from the possession of its owner without permission. Such removal, even with intention to return the object, constitutes a theft. Indeed, <i>Shakh</i> applies the Tosefta in permitting the copying of a manuscript in a situation in which the manuscript was entrusted to another scholar for safekeeping. Accordingly, it would appear that reproduction of a manuscript can be sanctioned only when no act of theft is involved with regard to the manuscript itself.2<i class="footnote">Cf., <i>Teshuvot Bet Yiẓḥak, Yoreh De‘ah</i>, II, no. 75, sec. 3.</i>
  As has been shown Judaism fails to recognize a right of privacy with regard to scholarly productivity. Indeed, there are grounds upon which it may be argued that a Torah scholar may be compelled to make his work available to others. Rema, <i>Hoshen Mishpat</i> 292:30, rules that, where books are not readily available, owners of volumes required for Torah study may be compelled by the <i>Bet Din</i> to make their personal libraries available to others without charge. The <i>Bet Din</i> may exercise this power in order to prevent neglect of Torah study. Arguably, the same consideration would augur in favor of enabling a <i>Bet Din</i> to compel a Torah scholar to make the fruits of his own studies available to others.3<i class="footnote">Cf., R. Naftali Zevi Yehudah Berlin, <i>Teshuvot Meshiv Davar</i>, I, no. 24.</i>
  Commercial publication, however, is another matter entirely. Such publication involves two considerations: 1) A scholar's or author's rights with regard to the fruits of his intellectual labor; and 2) a publisher's rights to be protected against loss of capital invested in a publishing enterprise.
  The second question was first addressed by R. Moses Isserles, <i>Teshuvot Rema</i>, no. 10, in conjunction with a controversy which arose over publication of Rambam's <i>Mishneh Torah</i>. A corrected edition of Rambam's <i>Mishneh Torah</i> was published by Maharam of Padua in partnership with a non-Jewish Venetian publisher, Alvise Bragadini in 1550-1551. A similar edition was published in the same city almost simultaneously by another Christian publisher, Marco Antonio Giustiniani. The latter edition was published, not in order to satisfy market demand, but because Giustiniani was incensed that Maharam of Padua had entered into partnership with his competitor and was motivated by a desire to cause serious financial loss to Maharam of Padua. In order to achieve this end, the Giustiniani edition was offered for sale at a price significantly lower than that of Maharam of Padua.4<i class="footnote">See Meir Benayahu, <i>Haskamah u-Reshut be-Defusei Venetsi’ah</i> (Jerusalem 5731), pp. 23-25.</i> Rema's responsum, which is a primary source regarding certain aspects of Noachide law, focuses upon whether the non-Jewish publisher had a right to republish a work still in print and thereby cause a financial loss to the prior publisher. Relying in part upon provisions of Jewish law which forbid competition which results in financial damage to a competitor, Rema concludes that the second publisher was not entitled to sell his edition until all copies of the edition published by Maharam of Padua had been sold. Accordingly, Rema declared it to be forbidden for any Jew to purchase the Giustiniani edition upon pain of excommunication. It is of interest that in issuing the pronouncement Rema took note of the fact that Giustiniani had previously performed valuable services on behalf of the Jewish community in publishing religious works but observed that there need be no fear of offending that publisher and thereby causing him to refrain from further undertakings of a like nature since his Hebrew publishing ventures were motivated by a desire for profit.
  R. Shlomoh Luria, <i>Teshuvot Maharshal</i>, no. 36, and R. Mordecai Benet, <i>Perashat Mordekhai, Hoshen Mishpat</i>, no. 7, disagree with Rema in part. These authorities argue that competition of such nature is banned by rabbinic edict rather than by biblical law. Rabbinic forms of "theft," they argue, are forbidden only to Jews but not to Noachides.5<i class="footnote">Cf., however, <i>Ḥiddushei Ḥatam Sofer, Baba Batra</i> 21b, and <i>Teshuvot Ḥatam Sofer, Ḥoshen Mishpat</i>, no. 79, s.v. <i>pasik ha-shem ha-rev‘i</i>.</i>
  Subsequently, it became common practice for an author or prospective publisher to protect himself against financial loss by approaching a rabbinic authority and securing a formal <i>ḥerem</i> or ban against publication of the same work by any other party for a stipulated period of time. The text of this ban was then customarily published in the prefatory section of the book.6<i class="footnote"><i>Teshuvot Ḥatam Sofer, Ḥoshen Mishpat</i>, no. 79, s.v. <i>mi-zeh nireh li</i>, points out that the <i>ḥerem</i> was customarily issued against the future publisher rather than against the purchasers of the illicitly published volumes. However, in two other responsa, <i>Ḥoshen Mishpat</i>, no. 41, and VI, no. 57, <i>Ḥatam Sofer</i> declares that if a <i>ḥerem</i> against the publisher proves to be ineffective a <i>ḥerem</i> may be pronounced against the purchasers as well.</i> The halakhic efficacy of such a <i>ḥerem</i> is a subject of dispute between R. Mordecai Benet and R. Moses Sofer.
  The controversy arose with regard to the rights enjoyed by the publishers of the famed Rödelheim holy day prayer books. The publisher, Wolf Heidenheim, had secured a <i>ḥerem</i> against republication by other persons for a period of twenty-five years. The same prayer books were published shortly afterward by a firm in Dyhrenfürth. R. Mordecai Benet publicized the ban prohibiting the latter edition and cautioned against purchase of those prayerbooks. Thereupon, the publisher, a gentleman by the name of Schmidt, summoned R. Mordecai Benet to appear before the civil court alleging his conduct to be contrary to the law of the land since Schmidt had secured permission from the civil authorities to publish his edition of the prayer book. As a result, R. Mordecai Benet withdrew his earlier pronouncement forbidding purchase of that edition. In <i>Perashat Mordekhai</i>, no. 7, he explains that, as recorded by Shulḥan Arukh, Yoreh De'ah 232:12, written oaths are of no validity. Similarly, rules <i>Perashat Mordekhai</i>, only a <i>ḥerem</i> delivered orally is enforceable. Since the ban in question was issued solely in writing it could have no legal effect. This point is disputed by <i>Hatam Sofer, Hoshen Mishpat</i>, no. 79, s.v. <i>ve-gam ha-ḥerem be-ktav</i>, who rules that both an oath and a <i>ḥerem</i> in writing are valid.7<i class="footnote">See also <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, nos. 220 and 227.</i>
  R. Mordecai Benet found the <i>ḥerem</i> to be of no effect for yet another reason as well. Citing <i>Teshuvot Rivash</i>, no. 271, he argues that a ban pronounced by a rabbinic authority is valid only in the city or area subject to that authority's jurisdiction but is not binding upon persons living in another locale. R. Moses Sofer, <i>Teshuvot Hatam Sofer</i>, VI, no. 57, in an opinion rendered in a later dispute which arose between the publishers of the Vilna edition of the Talmud and the publisher of the earlier Slavuta edition, takes sharp issue with R. Mordecai Benet with regard to this point as well. <i>Hatam Sofer</i> regards a ban against publication which may cause harm to an earlier publisher to be simply the instantiation of an edict of the "ancients" which was promulgated in earlier times in order to facilitate Torah study and which was accepted by all Jewish communities. In the opinion of <i>Hatam Sofer</i>, that early edict provided that any rabbinic authority might issue a ban in any specific case for any specified period of time in accordance with his judgment. Such a ban would then become binding upon all of Israel by virtue of the original edict. The view expressed in this responsum is a forceful reiteration of the position earlier expressed in <i>Teshuvot Hatam Sofer, Hoshen Mishpat</i>, no. 41.
  There may, however, appear to be somewhat of a contradiction between <i>Hatam Sofer'</i>s position in VI, no. 57 and in <i>Hoshen Mishpat</i>, no. 79. In Vl, no. 57, he declares that the <i>ḥerem</i> protecting the publishers of the Slavuta edition of the Talmud is binding upon all Jews. Nevertheless, <i>Hatam Sofer</i> adds that, regardless of the time period specified in the <i>ḥerem</i>, it is of no further effect once the original printing has been fully sold, even if the time period specified in the <i>ḥerem</i> has not yet elapsed. <i>Hatam Sofer</i> reasons that a <i>ḥerem</i> is binding even beyond the jurisdiction of the authorities who issue such a <i>ḥerem</i> only because, as has been noted earlier, it is encompassed within an ancient edict. That edict, argues <i>Hatam Sofer</i>, was designed, not for the benefit of publishers, but for the purpose of achieving the widest possible dissemination of Torah. This rationale applies only to a <i>ḥerem</i> designed to protect investors against loss. Hence there exists no broad authority to impose such a <i>ḥerem</i> beyond the term necessary to sell the original printing. The time period specified in the <i>ḥerem</i> should be understood as limiting the force of the <i>ḥerem</i> to the specified time period or to the period of time necessary for the sale of the printing, whichever elapses first.8<i class="footnote">See also R. Baruch Teumim Frankel, <i>Ateret Ḥakhamim, Yoreh De‘ah</i>, no. 25, who cites numerous sources which declare that the force of a <i>ḥerem</i> is limited to prevention of loss by the publisher and hence does not prevent subsequent publication by others after the earlier printing is exhausted. Therefore, opines <i>Ateret Ḥakhamim</i>, if a publisher wishes to protect himself in a second printing he must secure a second <i>ḥerem</i> even though the time stipulated in the first <i>ḥerem</i> has not yet elapsed. <i>Kehillat Ya‘akov, Ḥoshen Mishpat</i>, no. 2, presents a detailed rebuttal of the contrary position espoused by R. Ephraim Zalman Margolioth.</i> A <i>ḥerem</i> which extends beyond the sale of the published edition can be construed only as being designed for the benefit of the publisher and hence may be binding within the jurisdiction of the authority who issues such a <i>ḥerem</i> but is not binding upon residents of any other area. <i>Hatam Sofer</i> further declares that if the original printing has been exhausted it is even meritorious for other publishers to print further editions in order to make volumes of the Talmud more widely available. Yet, in <i>Hashen Mishpat</i>, no. 79, <i>Hatam Sofer</i> upholds the validity of the <i>ḥerem</i> in favor of the publishers of the Rödelheim prayer books for the entire twenty-five year period of the <i>ḥerem</i> even though the prayer books were reprinted many times during that period.
  However, it is clear from <i>Hatam Sofer'</i>s discussion in <i>Hoshen Mishpat</i>, no. 79, that two factors obtained in the Rödelheim dispute which were not present in the Slavuta case: 1) The expenses incurred in compiling and printing the material for the Rödelheim prayer books could not have been recouped other than through multiple printings; 2) R. Wolf Heidenheim was not simply an entrepreneur engaged in publishing a religious work but had personally expended much effort in gathering and editing manuscripts. <i>Hatam Sofer</i> cites the halakhah recorded in <i>Ketubot</i> 106a which provides that those employed in correcting manuscripts in Jerusalem and the scholars who taught the laws of ritual slaughter, etc., may receive compensation for their efforts from Temple funds. Since the labor of compiling and editing manuscripts deserves communal remuneration, argues <i>Hatam Sofer</i>, the <i>Bet Din</i> may provide compensation by prohibiting others from engaging in a similar publishing enterprise.
  R. Mordecai Benet, <i>Perashat Mordekhai</i>, no. 8, argues in effect, that no ancient edict of the nature described by <i>Hatam Sofer</i> could have been promulgated. In his opinion "public policy" required, not protection of the publisher, but promotion of inexpensive editions of Torah works. As a parallel he cites <i>Baba Batra</i> 22a which declares that local tradesmen cannot prevent itinerant peddlers of cosmetics from selling their wares. Ezra decreed that peddlers be permitted to travel from city to city so that cosmetics and jewelry be readily available for Jewish women. The goal of his decree was to assure that husbands would find their wives attractive. Although protecting local merchants and assuring them a livelihood would also have served to further that purpose, Ezra quite obviously considered that any measure designed to lower prices would, in the long run, be more effective in achieving this goal. Similarly, argues <i>Perashat Mordekhai</i>, widespread distribution of sacred texts is better achieved by promoting competition rather than by protecting a publisher's monopoly. <i>Hatam Sofer, Hoshen Mishpat</i>, no. 79, s.v. <i>ve-nireh</i> counters, in effect, that local tradesmen are unlikely to close their businesses because of the competition of itinerant peddlers but publishers, if put at risk, are likely to seek other investments for their capital.
  Rabbi Benet does, however, distinguish between the rights of an author or editor and those of a publisher. A publisher is entitled to no protection with regard to a work which is in the public domain. However, it is inequitable for a person to make use of another's labor and talent in order to jeopardize the commercial interests of the latter. He justifies Rema's ruling with regard to Maharam of Padua's rights to the publication of Rambam's <i>Mishneh Torah</i> by pointing out that Maharam of Padua laboriously corrected the manuscript versions and, in addition, composed explanatory notes.
  The extent of an author's proprietary interest in his work is the subject of dispute between two eminent nineteenth-century authorities, R. Joseph Saul Nathanson and R. Isaac Schmelkes. The controversy arose in the wake of the republication by R. Joseph Hirsch Balaban of an edition of the <i>Shulḥan Arukh</i> which included the responsa précis <i>Pitḥei Teshuvah</i>. A complaint was lodged against the publisher by R. Abraham Joseph Madfis of Lemberg. The latter claimed that he had purchased the publication rights of <i>Pitḥei Teshuvah</i> from the author. The case was heard by Rabbi Samuel Waldberg of Zolkiew who ruled that the plaintiff could claim no greater right as the successor to the publication rights than could be claimed by the author himself. Rabbi Waldberg ruled that in publishing the <i>editio princeps</i> of the work in 5596 the author of <i>Pitḥei Teshuvah</i> had forfeited all subsequent rights through his failure to publish an <i>issur</i>, or warning tantamount to a copyright notice, prohibiting publication by other parties.9<i class="footnote">See also R. Isaac Schmelkes, <i>Teshuvot Bet Yiẓḥak, Ḥoshen Mishpat</i>, no. 80.</i> Moreover, since all copies of the original publication had been sold, the author could not plead unfair competition and potential loss of capital. Rabbi Waldberg, however, conceded that, had such "copyright notice" been published, the author would have retained a proprietary interest and might have conveyed such interest to whomever he desired.
  Rabbi Joseph Saul Nathanson, <i>Sho'el u-Meshiv, Mahadura Kamma</i>, I, no. 44, sharply disputes this view and finds for the plaintiff. In his opinion, an author retains publication rights for an unlimited period of time. Publication of an <i>issur</i> for a specified period of time, argues <i>Sho'el u-Meshiv</i>, is designed, not to protect the author, but, on the contrary, serves to grant permission to all and sundry to republish the work upon expiration of the stipulated time period. The author does this, says <i>Sho'el u-Meshiv</i>, because he wishes his work to have the widest possible circulation. However, asserts <i>Sho'el u-Meshiv</i>, absent such a specified time period, publication rights remain vested in the author forever.
  <i>Sho'el u-Meshiv</i> makes another interesting distinction between the rights of a publisher and those of an author. A <i>ḥerem</i> in favor of the publisher, he declares, is designed to promote dissemination of the publication rather than to protect the publisher's rights. Hence, rules <i>Sho'el u-Meshiv</i>, a <i>ḥerem</i> cannot prevent publication in a foreign country which bans the import of the already published edition.10<i class="footnote">See also <i>Teshuvot Bet Yiẓḥak, Ḥoshen Mishpat</i>, no. 80, and <i>Ateret Ḥakhamim, Yoreh De‘ah</i>, no. 25.</i> The author, however, declares <i>Sho'el u-Meshiv</i>, has an absolute proprietary right over his work and may ban publication under any and all conditions.
  R. Isaac Schmelkes, <i>Teshuvot Bet Yizḥak, Yoreh De'ah</i>, II, no. 75, rules that an author enjoys the right to publish his own work and thereby to preserve the <i>mizvah</i> of disseminating his Torah novellae for himself. A similar right is also reserved to the author's heirs. Nevertheless, he argues, no person has a pecuniary right with regard to Torah. Hence no author can restrain publication of a previously published work. A similar opinion is expressed by R. Abraham Rothenberg in a letter of approbation published in the Lublin, 5648 edition of the <i>Kizur Shulḥan Arukh</i>. Nevertheless, <i>Bet Yizḥak</i>, employing the concept <i>dina de-malkhuta dina</i> concedes that such action is forbidden by Halakhah when prohibited by civil law. <i>Bet Yizḥak</i> rules that the "law of the land" is binding in Jewish law when the secular law is designed to promote a valid public policy. Protection of authors is a valid consideration and hence, when forbidden by civil law, a work cannot be republished without permission of the author. This position is reiterated in <i>Teshuvot Bet Yizḥak, Hoshen Mishpat</i>, no. 80. However, in this responsum, written at a later date, <i>Bet Yizḥak</i> concludes his remarks with the statement: "Nevertheless, I make no final determination for perhaps there is some right with regard to this on the basis of Torah law or perhaps the author possesses some right by virtue of custom."
  <i>Teshuvot Hatam Sofer, Hoshen Mishpat</i>, no. 79, s.v. <i>ve-im ken be-sha'arei madfisim</i>, distinguishes between authors of halakhic compendia or Torah novellae and editors of prayer books and the like. Although he concedes that an author is entitled to compensation for his labor, he argues that every person is nevertheless obligated to teach Torah without compensation. Accordingly, although an author or publisher is entitled to protection against loss of capital ventured in a publishing enterprise, <i>Hatam Sofer</i> argues that an author is not entitled to profit from the dissemination of Torah. Editors of manuscripts, on the contrary, are entitled to be compensated for their labor. It does, however, appear to be arguable that authors are entitled to similar compensation, not for making their insights available to others, but for the physical labor expended in preparation of manuscripts, proofreading, etc.
  Regardless of whatever proprietary rights a scholar may enjoy with regard to the product of his studies, Torah scholars were wont to be more concerned with dissemination of their scholarship than with pecuniary profit. <i>Hatam Sofer</i>, in the introduction to his responsa volume on <i>Yoreh De'ah</i>, writes " … everything with which God has graced me, whether in <i>halakhah</i> or in <i>aggadah</i>, lies as <i>res nullius;</i> anyone who wishes to copy them may come and copy them and thus did our predecessors do before the printing press." Hafez Hayyim, in a letter which appeared in the Warsaw newspaper, <i>Der Yid</i>, 27 Sivan 5673, wrote, "I grant permission for all time to any Jew to reprint [the <i>Mishnah Berurah</i>], but only as it is now printed, viz., <i>Shulḥan Arukh, Be'er Heitev, Sha'arei Teshuvah</i>, together with my explanations, <i>Mishnah Berurah, Bi'ur Halakhah</i> and <i>Sha'ar ha-Ẓiyun</i>, without change. However, I grant permission in this manner: that from each hundred copies which are printed [the publisher] is obligated to give 4 percent to Houses of Study, i.e. 4 volumes out of every hundred to House[s] of Study…."
  Similarly, at an earlier time, R. Naphtali Zevi Yehudah Berlin freely granted permission for republication of his edition of the <i>She'iltot de-Rav Aḥa'i Ga'on</i> and of his accompanying commentary, <i>Ha'amek She'elah</i>. The following notice is included in the introduction to that work, <i>Petaḥ ha-Emek</i>, chap. 3, sec. 5: "Whosoever desires to print this book in this country or in another country, I hereby give him permission to do so without charge. I hereby wholeheartedly grant him all [rights] in order to disseminate the teaching of our master [R. Aḥa'i Ga'on] of blessed memory. But it is my request and admonition that one who considers reprinting while I or my son, R. Chaim Berlin, is yet alive notify us, for perhaps I will have further novellae or I may correct the language or the subject matter…."
  Repayment of Loans and Currency Exchange
  Until recently the Israeli pound was officially pegged to the dollar. The value of the lira was established by decree of the government of the State of Israel and over the course of three decades was devalued on numerous occasions. All official transactions took place at the legally established rate. Since there were stringent controls with regard to the amount of Israeli money which might be converted into other currencies and of the circumstances under which such exchanges might be made, there emerged a so-called free market where exchanges were made, albeit illegally, without regard for such regulations. Understandably, the dollar and other hard currencies commanded a price on the free market higher than the official rate of exchange.
  This situation led to a most interesting question with regard to the laws of usury. Let us suppose that a person has borrowed seven lira. At the prevailing official rate at the time of the loan the currency he has borrowed was valued at exactly one dollar. However, on the free market, the dollar commanded a significantly higher rate, e.g., 8.50 pounds. The question, then, is this: May the borrower repay his debt in dollars at the official rate of exchange? At the official rate, the borrower is paying no interest whatsoever; however, at the free market rate he is paying a sum significantly greater than the value of the pounds which he has borrowed. Insofar as the laws of interest are concerned, is value determined by the legal rate set by government authorities or by the value actually commanded in the market-place?
  This question was posed to a number of Israeli scholars by Rabbi Yosef Hertz. Their answers are collected and published in the Sivan 5734 issue of the Sephardic Torah journal, <i>Or Torah</i>. The answers reveal a significant difference of opinion among the respondents.
  Rabbi Hertz himself is of the opinion that, under such circumstances, repayment in the form of American dollars constitutes usury. He carefully points out that this is so even though it may be forbidden according to Halakhah to engage in black market activities. Indeed none of the respondents offers sanction for such illicit activity. Rabbi Hertz argues that while the government may licitly regulate currency exchange and while the populace may be obliged to obey government decrees, nevertheless, the intrinsic value of currency cannot be changed by government edict. The value of any commodity is determined by the price it actually commands in the marketplace. He attempts to show the cogency of his position by means of a <i>reductio ad absurdum</i>. Suppose the government were to decree the dollar to be totally devoid of value and to forbid all dollar transactions. Under such circumstances if, for purposes of contracting a marriage, a woman were to accept a dollar in place of a ring or other object of value, would the marriage be invalid? Rabbi Hertz answers that since the dollar <i>does</i> have a value, and despite government regulations, can indeed be sold on the free market, the marriage is valid. Similarly, he argues, insofar as the laws of usury are concerned, the value of the dollar is the value it commands on the free market. Rabbi B. Mendelsohn concurs in the opinion that repayment of a debt in such a manner constitutes usury. He argues that a lender who accepts payment in dollars is grateful to the borrower for returning an object of enhanced value and this alone causes the transaction to be usurious in nature.
  Rabbi Menachem Aaronberg adopts the opposite position and rules that repayment in dollars is not objectionable. He agrees with Rabbi Hertz that the marriage of a woman betrothed with a dollar which had been banned by the government as legal tender would be completely valid. The value of an object for purposes of marriage is contingent upon its value when exchanged for silver. Since the dollar may be converted into silver,11<i class="footnote">The reference is obviously to silver certificates, which are no longer issued by the United States government, rather than federal reserve notes which are not redeemable in silver. For a discussion of the halakhic status of bank notes in general as well as for purposes of contracting a marriage, see <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 134.</i> it is an object of value even if it could not, under any circumstances, be converted into pounds. Furthermore, anything which is an object of value in any locale may be utilized any place in the world for purposes of contracting a valid marriage. He argues, however, that for determinations pertaining to usury, the value of an object is determined by the price it commands in the locale where payment is made. Since exchange of the dollar on the free market is illegal and punishable by fine and imprisonment, it is not freely exchangeable other than at the official rate. Its value, then, must be viewed at the price it commands at the official rate of exchange.
  Several of the respondents who permit repayment in dollars under these circumstances emphasize that this procedure is permissible only if payment in hard or more valuable currency is not intended as an indication of gratitude to the lender for having extended the loan. Such expression of gratitude would itself be a violation of the laws of usury.
  At present, the Israeli shekel (which has replaced the lira as the basic monetary unit) is deregulated and there are no restrictions with regard to conversion into other currencies. Since the value of the shekel is controlled solely by the free market, the problem raised herein is no longer actual. Dollar-linked loans do, however, pose a problem with regard to usury prohibitions. Loan and repayment of commodities rather than specie is forbidden by rabbinic decree because of possible enhancement of the value of the commodity. R. Abraham Isaac Hoffmann, <i>Ha-Emek</i>, Nisan 5736, cites <i>Hazon Ish, Yoreh De'ah</i> 72:8, who states that loans expressed in the currency of a foreign country must be considered to be in the category of commodity loans (<i>sa'ah be-sa'ah</i>). As the relative values of the currencies of different countries fluctuate, the currency of the place of residence is deemed to be the "commodity" which either increases or decreases in value. Thus, for the Israeli, insofar as Jewish law is concerned, the depreciation of the shekel is really revaluation of the dollar, i.e., the dollar has increased in value while the lira has remained stable. Thus, repayment of a fixed number of dollars is repayment of a "commodity" which has appreciated in value.
  Severance Pay: Hired Servant or Independent Contractor?
  A hired employee, under Jewish law, enjoys certain benefits which do not accrue to an independent contractor. Most basic of these is the right of the laborer "to withdraw even in the middle of the day." The Gemara, <i>Baba Mezi'a</i> 10a, declares that involuntary labor is a form of servitude. Since Jews are described by God as "my servants" no Jew can rightfully be forced to serve a mortal master as a laborer, even if he has previously agreed to do so. A laborer cannot be compelled to work against his will, since forcing him to do so would relegate him to the status of a slave. Nevertheless, if his withdrawal should result in irretrievable loss, the laborer may be required to compensate his employer for such loss. The laborer is, however, not liable for damages simply because other workers hired in his stead demand higher wages.
  An independent contractor, on the other hand, is in no way comparable to a slave. He, therefore, is not granted the prerogative of withdrawing from his contractual agreement. Although specific performance cannot be compelled and hence the contractor cannot be forced to carry out his undertaking, nevertheless any expenses incurred in completing the task may be deducted from the sum owed to the contractor.
  By virtue of custom and practice workers are entitled to paid vacations and, particularly in Israel, to severance pay upon dismissal. Independent contractors do not enjoy such benefits. Writing in the 5737 issue of <i>Torah she-be-'al Peh</i>, Rabbi Shmuel Baruch Werner reports on a case which came before the Tel Aviv <i>Bet Din</i>, of which he is a member. A school had hired a chauffeur to transport students in his own car on a daily basis. Following four years of employment in this capacity, the chauffeur was peremptorily dismissed in the midst of the school year. The chauffeur demanded severance pay, as is customary and usual in Israel upon dismissal of a worker. The school rejected this demand, arguing that the chauffeur was an independent contractor rather than a hired laborer and hence not entitled to such compensation.
  The crucial legal issue in this dispute hinges upon delineation of the criteria which distinguish an independent contractor from a hired worker. In terms of usual relationships, the distinguishing criteria are two in number: (1) a laborer is hired for a specific period of time while a contractor is engaged to perform a specific task; (2) a hired laborer is bound to the master in being obligated to work during fixed hours whereas an independent contractor may work when it pleases him to do so.
  It is, however, possible for a person to be hired for the performance of a specific task, regardless of its duration, but with the stipulation that the task be performed at a certain stipulated hour or between certain hours of the day. Is a person who enters into a contract to perform a specific task at a specific time, but is not bound to work beyond completion of the task, a hired laborer or a contractor? The chauffeur, in the case litigated before the <i>Bet Din</i>, had obligated himself to perform a specific task, rather than to work for a specific period of time, but had bound himself to transport the children at appointed hours. Conversely, what is the status of a person hired and compensated on a piece-work basis but who has agreed to work certain specified hours?
  <i>Mahari Engel</i>, no. 16, maintains that the crucial criterion which distinguishes an independent contractor from a laborer is contracting for the performance of a specific task. Thus, a ritual slaughterer, who is paid for each animal he slaughters, enjoys the status of a contractor even though he is obligated to make his services available during specific hours. Rabbi Werner, however, cites a number of latter-day authorities who apparently disagree. Most explicit of these is <i>Serna, Hoshen Mishpat</i> 333:16, who cites as the sole distinction between a hired laborer and a contractor the fact that the latter may work "during whatever hours of the day he chooses in the manner of a master doing his own labor" while a hired laborer has no such discretion. The manner of compensation, whether on a weekly or piece-work basis, is irrelevant. R. Shlomoh Kluger, <i>Hokhmat Shlomoh, Hoshen Mishpat</i> 333, extends this concept to encompass the case of a person who has not obligated himself to perform a set task but who has obligated himself to work a set period of time, e.g. two hours, but who leaves himself the option of selecting the hours of work as he chooses. Thus a tutor who agrees to teach at a set hour is a hired worker, while one who agrees to teach for a two-hour period but reserves the right to choose and to vary the time of the lesson is an independent contractor. This distinction, and its application to teachers, is found in <i>Or Zaru'a</i>, authored by R. Isaac of Vienna, <i>Baba Mezi'a</i>, chap. 6, no. 242. On the basis of these sources the Tel Aviv <i>Bet Din</i> ruled in the case at hand that since the chauffeur had been obliged to perform his duties at certain specified times he is entitled to the rights and privileges of a laborer.
  Judges Under Threat
  In a contribution to the Tevet 5740 issue of <i>Ha-Ma'ayan</i>, Dr. Abraham S. Abraham discusses a number of questions pertaining to interpersonal obligations in face of danger. Perhaps the most intriguing of these is the obligation of a judge to hear a case and to render a just verdict despite a threat directed against him.
  The biblical passage "You shall not be afraid of the face of any man" (Deuteronomy 1:17) is understood as an admonition directed to judges. This exhortation is amplified in the <i>Sifre</i> ad loc., with the comment, "Lest you say 'I am afraid of so-and-so lest he kill my son or lest he kindle my stack [of corn].' " R. Yonatan Eibeschutz, <i>Urim ve-Tumim</i> 12:2, states that this exhortation applies only in the case of a judge who has already begun trying a case. However, prior to accepting a case for adjudication, a judge who has reason to be afraid of one of the litigants may justifiably decline to involve himself. Indeed, the Gemara, <i>Sanhedrin</i> 6b, cites this verse in stating that a judge who has already heard the litigants' arguments and knows in which direction "the verdict inclines" is forbidden to withdraw because of fear.
  The problem which must be addressed is why this prohibition differs from others. The general principle is that all prohibitions are set aside in face of danger to life. If so, it should follow that a judge who feels threatened should be permitted to withdraw in order to prevent danger to himself or to others. <i>Teshuvot Shevut Ya'akov</i>, I, no. 143, states that in cases of genuine danger this is indeed the rule with regard to the prohibition "You shall not be afraid of any man" as well. Nevertheless, declares <i>Shevut Ya'akov</i>, Halakhah provides that a mere threat directed against a judge must be disregarded on the grounds that, in general, no Jew is to be suspected of actually contemplating a murderous reprisal against a judge because of an unfavorable verdict. However, when a real danger does exist, concludes <i>Shevut Ya'akov</i>, the judge may withdraw even after hearing arguments.
  R. Moses Schick, <i>Maharam Schick al Taryag mizvot</i>, no. 416, also declares that a judge may withdraw at any time because of a threat to life. <i>Maharam Schick</i> asserts that the ruling recorded in <i>Sifre</i> follows the position that one must suffer martyrdom rather than misappropriate the property of another. Since normative Halakhah is not in accordance with that view, a judge may likewise withdraw from a case in face of danger.
  In the following issue of <i>Ha-Ma'ayan</i>, Nisan 5740, the editor, R. Yonah Emanuel draws attention to a statement of Rabbenu Yonah, <i>Sha'arei Teshuvah</i> 3:188, that apparently is at variance with the position of <i>Shevut Ya'akov</i>. Rabbenu Yonah states, "A person must deliver himself to danger … one who sits in judgment should not fear that he may die (at the hands of) any man as it is said, 'You shall not be afraid of the face of any man.' "
  Rabbi Emanuel also cites an anecdote recorded in <i>Sanhedrin</i> 19a. A slave of King Yanai committed an act of homicide. Thereupon Shimon ben Shetaḥ summoned Yanai to appear before the <i>Bet Din</i>. Upon Yanai's demurrer, the colleagues of Shimon ben Shetaḥ refused to support the demand that the trial of the king proceed. They were obviously afraid of incurring the wrath of Yanai. Shimon ben Shetaḥ called on God to punish his colleagues. The Gemara concludes the narrative by stating that the angel Gabriel cast them to the ground and they died.
  A similar event is recorded by Josephus, <i>Antiquities</i> 14:9. Herod was summoned before the Sanhedrin because he had unjustly put people to death. When he appeared, attired in his royal robes and attended by armed warriors, the members of the Sanhedrin fell silent. Shammai then chastized the judges of the Sanhedrin and predicted that they would fall by the sword.
  The question thus far is whether or not the judge may withdraw from a case because of fear. A further question which presents itself is whether, even according to the position of <i>Shevut Ya'akov</i> (who maintains that in face of genuine danger the judge may recuse himself) the judge who finds it impossible to withdraw may render an unjust verdict in favor of one of the litigants who has threatened him with death? The discussion in <i>Ha-Ma'ayan</i> presents two opposing viewpoints in response to this question.
  Rabbi Eliezer Waldenberg, Jerusalem scholar and member of the Supreme Rabbinic Court of Appeals, is quoted (<i>Ha-Ma'ayan</i>, Nisan 5740) as stating that in the face of a real threat to life even subversion of justice is warranted. He bases himself on the Gemara, <i>Ketubot</i> 19a, which permits false testimony in the face of danger. Rabbi Waldenberg states that the same principle applies as well to rendering an unjust verdict. This is also the opinion of R. Moses Schick, <i>Teshuvot Maharam Schick, Oraḥ Hayyim</i>, no. 303, and <i>Maharam Schick al Taryag mizvot</i>, no. 416.
  Dr. Abraham (<i>Ha-Ma'ayan</i>, Tevet 5740) quotes Rabbi Emanuel as expressing the view that it is not reasonable to assume that miscarriage of justice is permissible even in the face of danger. Dr. Abraham responds with the observation that the transgression involved is no different from other transgressions which are suspended in the presence of danger.
  It seems to this writer that the prohibition involved in rendering a false juridical decision is indeed qualitatively different from other transgressions. <i>Baba Kamma</i> 38a reports that the Romans sent two officials to the sages in the Land of Israel to study Torah. The officials expressed satisfaction with what they learned with the exception of one aspect of tort liability in which Jewish law seems to manifest prejudice against non-Jews (the Jewish owner of an ox which gores the ox belonging to a non-Jew is not liable for damages, while the non-Jewish owner of an ox which gores an ox belonging to a Jew must make restitution). Despite their discomfiture with this legal provision, the officials promised that they would not divulge this aspect of Jewish law to the governmental authorities in Rome. R. Shlomoh Luria, <i>Yam shel Shlomoh, Baba Kamma</i> 4:9, raises an obvious question. Imparting this information to the Roman officials could easily have had catastrophic consequences for the entire Jewish people. There was, after all, no guarantee that the officials would be kindly disposed and would not deliver a full report to the government in Rome. Why, then, did the sages not misrepresent the law by telling the Roman emissaries either that, in the case in question, both a Jew and a non-Jew would be culpable for damages, or that neither would be culpable? <i>Yam shel Shlomoh</i> responds by declaring that Torah may not be falsified even in the face of danger; falsification of even a single detail is tantamount to renunciation of the Torah in its entirety.12<i class="footnote">See, however, <i>Teshuvot Yad Eliyahu</i>, no. 48, who disagrees with this position.</i>
  It would appear that <i>Yam shel Shlomoh'</i>s position is reflected in the well-known narrative related by the Gemara, <i>Gittin</i> 56a. Bar Kamza determined to betray the Jewish people to the Roman Emperor:
  He went and said to the emperor, The Jews are rebelling against you. He said, How can I tell? He said to him: Send them an offering and see whether they will offer it [on the altar]. So he sent with him a fine calf. While on the way he made a blemish on its upper lip, or as some say on the white of its eye, in a place where we [Jews] count it a blemish but they do not. The Rabbis were inclined to offer it in order not to offend the Government. Said R. Zechariah b. Abkulas to them: People will say that blemished animals are offered on the altar. They then proposed to kill Bar Kamz a so that he should not go and inform against them, but R. Zechariah b. Abkulas said to them: People will say one who makes a blemish on consecrated animals is to be put to death. R. Yohanan thereupon remarked: Through the forbearance [<i>anvatanuto</i>] of R. Zechariah b. Abkulas our house has been destroyed, our Temple burnt and we ourselves exiled from our land.
  It is popularly assumed that the Gemara, in describing <i>anvatanuto</i> of R. Zechariah ben Abkulas, is censuring him for misplaced humility and lack of initiative. This understanding is reflected in a note in the Soncino translation (page 255, note 2), which renders this term as "humility." Yet Rashi translates the term <i>anvatanuto</i> as "his forbearance" or "his patience." Forbearance is a matter quite different from humility and does not seem to warrant censure.13<i class="footnote">See, however, R. Elijah of Vilna, <i>Dvar Eliyahu, Parshat Mishpatim</i>, s.v. <i>lo tiheyeh aḥarei rabbim</i>.</i> The Gemara's categorization of R. Zechariah's action is thus a statement of fact and is not a criticism.
  The reaction of the sages was quite predictable. The prohibition against offering an animal with a blemish may certainly be ignored in order to preserve life. Bar Kamza, who instigated the Roman Emperor, was certainly in the category of a <i>rodef</i>, an aggressor who causes the death of innocent victims through his actions. Causing the death of the messenger who had made a blemish in the animal would certainly have been permitted as an act of self-defense. But R. Zechariah ben Abkulas did not respond in the obvious, intuitive manner of his colleagues. His concern was not with any single infraction of Jewish law. He was concerned lest "people will say that blemished animals may be offered on the altar" and lest "people say that one who makes a blemish on consecrated animals is to be put to death." The overriding concern was that the act might not be perceived as an <i>ad hoc</i> emergency measure designed to prevent loss of innocent lives, but that it might be misinterpreted as normative Halakhah. Falsification of Halakhah, opined R. Zechariah b. Abkulas, is not permissible even in face of the threat of death, destruction of the Temple, and exile of the Jewish people. Perversion of the <i>mesorah</i> (tradition), even with regard to a single halakhah, is tantamount to denial of the Sinaitic revelation.
  Of interest in this regard are the comments of R. Ya'akov Emden, <i>Migdal Oz, Even Boḥen</i> 1:35. R. Ya'akov Emden cites <i>Teshuvot Radbaz</i> to the effect that one must suffer martyrdom rather than deny the veracity of the Law of Moses and adds that the same applies with regard to denial of the Oral Law and the words of the sages.
  It would thus seem quite logical that a false judgment may not be issued even in face of a threat to life. A false judgment is tantamount to perversion of the law and falsification of the Halakhah. Rabbenu Yonah, who apparently maintains that a judge may not decline to sit in judgment despite a threat to his life, may also have been prompted by the consideration that failure to render judgment may also lead to distortion of the law. It may be noted that Rambam, <i>Hilkhot Sanhedrin</i> 22:1, followed by Shulḥan Arukh, Hoshen Mishpat 12:1, distinguishes between a <i>mumḥeh le-rabbim</i> (i.e., a publicly appointed judge) and others who are qualified to serve as judges, but who hold no official position. The latter may decline to hear a case for fear "lest he kill my son or kindle my stack [of corn]" but a <i>mumḥeh le-rabbim</i> dare not decline even under such conditions. This distinction may perhaps be explained if it is understood that the formally established <i>Bet Din</i> is obligated to guarantee transmission of the Law. No person may falsify the <i>mesorah</i>, but members of the publicly appointed <i>Bet Din</i> incur the additional obligation of actively guaranteeing its preservation. Hence, under no circumstances may they allow the Halakhah to fall into disuse and thus into oblivion by declining to sit in judgment.
  In the same responsum Rabbi Feinstein rules that unauthorized copying of a tape prepared for commercial purposes is forbidden as constituting an act of theft. Although no sources are cited in the brief discussion presented, this ruling seems to espouse the position adopted by <i>Sho'el u-Meshiv</i>. The rights of a lecturer to material recorded by himself on a tape would appear to be identical to those of a scholar with regard to his written novellae.
  
  Chapter VII Miscellaneous Questions
  
  <i>In all your ways acknowledge Him, and He will direct your paths</i>.
  PROVERBS 3:6
  There exists no area of human concern which Jewish teaching fails to address. Jewish law is hardly limited to ritual matters. Indeed, no aspect of human conduct is so weighty that it is beyond the pale of Halakhah and none is so insignificant that it does not merit the attention of that discipline.
  The Sages themselves pointed out that the term <i>halakhah</i> is derived from the verb <i>halokh</i> meaning "to walk." In its primary sense Halakhah is a means of regulating man's journey through life; it is the map which directs man along the footpaths which he has been called upon to traverse. Man's telos is the service of God; but divine service is not restricted to red-letter observances. Ideally, every act and every breath must be consecrated to divine service and hence all activities—the trivial as well as the sublime—are circumscribed by Halakhah. The myriad provisions of Jewish law in all their manifold applications serve to keep man from losing sight of his proper goal and to prevent him from straying from its pursuit.
  "Be as meticulous with regard to a minor precept as with regard to a major one," admonished Rabbi Judah the Prince, <i>Avot</i> 2:1. This exhortation, calling for scrupulous observance of all commandments, has always served as a directive governing halakhic investigation. Rabbinic decisors invariably lavish unstinting concern and attention upon all halakhic questions, meticulously examining and analyzing each issue, regardless of whether the problem at hand concerns a "minor precept" or a "major one."
  Moreover, rabbinic scholars concern themselves with all halakhic problems, applying themselves to the esoteric and purely theoretic with the same concentration and intellectual rigor as to the practical and commonplace. The pursuit of Torah scholarship has always been regarded as a paramount value in and of itself. Even when bereft of practical application the intellectual endeavor generates it own reward as succinctly stated by the Sages, <i>Zevaḥim</i> 45a, "Investigate and receive reward!"
  Tuna Fish
  Tuna fish, a relatively inexpensive food, which can be prepared easily as a salad or a sandwich spread, is a staple in the diet of many. Jews, in particular, who are prevented from making use of most prepared foods by virtue of <i>kashrut</i> regulations, have found tuna fish to be a readily available and satisfying food. Since the tuna which is marketed commercially is a kosher species, many observant Jews are under the impression that no <i>kashrut</i> supervision is required.
  There are, however, a number of responsa, authored by halakhic authorities of renown, which state that this is not the case. The first of these, written some eighteen years ago by the late Rabbi Yosef Eliyahu Henkin, appeared in the Kislev 5722 issue of the Israeli Torah journal, <i>Kol Torah</i>. Much of the material in this responsum was incorporated in a second item which appeared in the Tevet 5723 issue of <i>Ha-Pardes</i>. More recently, this position was reiterated by Rabbi Moses Feinstein in a responsum dated 16 Iyar 5737, <i>Iggerot Moshe, Yoreh De'ah</i>, III, no. 8.
  The <i>kashrut</i> of a fish yet intact can be readily determined by examining the fish for the presence of fins and scales. Fish which have been filleted, or skinned and canned, no longer bear these tell-tale signs of <i>kashrut</i>. It is evident from the rulings of Shulḥan Arukh, Yoreh De'ah 83:7-8 that under such circumstances the fish may not be eaten unless it is readily recognizable as being of a kosher species. Thus <i>Shulḥan Arukh</i> records a prohibition against purchasing fish roe unless the roe possesses certain characteristics associated only with kosher species (e.g., the eggs are round at one end and pointed at the other) and the seller confirms that they are the eggs of a kosher fish.
  Rambam, Hilkhot Ma'akhalot Assurot 3:21, rules explicitly that it is forbidden to purchase portions of a fish which lacks fins and scales from a non-Jew. In the article which appeared in <i>Kol Torah</i> Rabbi Henkin also cites the prohibition recorded in <i>Yoreh De'ah</i> 118:1 against eating meat which has been entrusted to a non-Jew for safekeeping or transport. <i>Shulḥan Arukh</i> states explicitly that this prohibition applies with equal rigor to fish. The terminology employed by <i>Shulḥan Arukh</i> is, "Meat or a piece of fish having no sign [of <i>kashrut</i>] which is entrusted to or sent through a non-Jew requires two seals." Fish whose <i>kashrut</i> is not readily discernible may be transported for consumption by Jews only under a double seal. In the absence of the safeguard of a double seal the fish may not be eaten because of the possibility that nonkosher fish may have been substituted.
  Rabbi Henkin and Rabbi Feinstein reach an identical conclusion in ruling that it is necessary for a <i>mashgiaḥ</i> (<i>kashrut</i> supervisor) to be present during the processing of the fish and for him personally to examine each fish for the presence of fins and scales. Rabbi Feinstein addresses himself specifically to the question of government supervision and to the contention that fear of punitive measures may constitute an adequate substitute for the presence of a <i>mashgiaḥ</i>. Rabbi Feinstein peremptorily dismisses the notion that government inspection might constitute an adequate safeguard. Moreover, he argues, even a <i>mashgiaḥ</i> "exiting and entering " (i.e., a <i>mashgiaḥ</i> who comes and goes periodically but who is not constantly present) is not sufficient. Such supervision is satisfactory, declares Rabbi Feinstein, only if the activity under supervision is one of sufficient duration so that the <i>mashgiaḥ</i>, on his return, might be able to apprehend a malefactor in the midst of the act. Removal of the skin of a fish, however, can be accomplished so swiftly that a person who wishes to substitute a nonkosher fish need not fear that the <i>kashrut</i> supervisor might return and catch him in the act. Therefore, rules Rabbi Feinstein, it is necessary for the <i>mashgiaḥ</i> to be present constantly throughout the canning process and for him to examine each fish.
  The permissibility of canned tuna is also discussed in Rabbi Ya'akov Breisch's <i>ḥelkat Ya'akov</i>, III, no. 10, in a responsum whose composition is attributed to "a son of the author." <i>ḥelkat Ya'akov</i> reaches a conclusion at variance with the position of both Rabbi Henkin and Rabbi Feinstein. Magen Avraham, Oraḥ Hayyim, 20:1, states that the principle that an artisan or tradesman will not ruin his reputation (<i>uman lo meira umnateih</i>) establishes the credibility of such persons, not only with regard to possible adulteration of materials or food products offered for sale, but even with regard to the intrinsic species which he offers for sale provided that such substitution would destroy his credibility not only in the eyes of Jews but in the eyes of his non-Jewish clientele as well. Thus, the testimony of a non-Jewish tradesman may not be accepted in order to verify that an animal has been slaughtered in the prescribed manner since this is not a matter of concern to non-Jews and hence a falsehood would not damage his reputation in their eyes. However, argues <i>Helkat Ya'akov</i>, since substitution of another species of fish is forbidden by law, such substitution, if detected, would damage the processor's reputation in the eyes of non-Jews as well and, accordingly, his statement with regard to the contents of the can may be relied upon.
  However, as <i>ḥelkat Ya'akov</i> hastens to add, <i>Magen Avraham'</i>s position is rejected by <i>Noda bi-Yehuda, Oraḥ Hayyim</i>, II, no. 72. <i>Noda bi-Yehudah</i> maintains that although it is not to be presumed that a tradesman will establish his business on the basis of fraud he must nevertheless be suspected of being ready to profit from the substitution of one species for another when an inferior product has come into his possession, even when, if detected, his reputation would be damaged in the eyes of non-Jews.
  Nevertheless, argues <i>ḥelkat Ya'akov</i>, even <i>Noda bi-Yehuda</i> would concede that the tradesman's declaration may be relied upon when his statement is subject to independent verification even if such verification can be accomplished only with some difficulty. In support of this position he cites <i>Avodah Zarah</i> 34b which states that a certain fish known as <i>ḥeilek</i> may be purchased from a fishmonger but not from other non-Jews. Rashi explains that these are small fish of a kosher species which do not develop fins and scales until they mature. The young of such species are permissible even though they do not yet manifest fins and scales. However, fish of a similar, and not readily distinguishable, nonkosher species are frequently caught with them in the same net. A tradesman is presumed to have the expertise which enables him to distinguish between the diverse species and may be relied upon to remove the nonkosher fish. Rashi carefully adds the comment that these fish are removed by the tradesman because they are of inferior quality and, if not removed, will spoil the taste of the entire batch of fish. Thus, the principle established seems to be that a tradesman's declaration is deemed to be reliable when substitution is detectable and immediately prejudicial to his own economic interests. Despite Rashi's comment, <i>Helkat Ya'akov</i> opines that the tradesman's word may be accepted simply because it is subject to independent confirmation. Applying this principle to canned tuna, <i>Helkat Ya'akov</i> argues that the manufacturer's labeling may be relied upon because the identity of the species within the can can be confirmed by "experts." Whether or not the identity of the species can in fact be confirmed by experts is an empirical question which is not addressed by <i>Helkat Ya'akov</i>. It should also be noted that in the immediately preceding responsum, no. 9, Rabbi Ya'akov Breisch himself expresses reservations with regard to the permissibility of such products on a number of grounds, including the question of identification of species.
  The selfsame question with regard to the permissibility of tuna fish quite obviously applies to other forms of processed fish, such as fish fillets, fish sticks, chopped fish and the like, in which the species is not recognizable. <i>Helkat Ya'akov</i>, III, no. 10, sec. 5, states that this problem does not arise with regard to canned sardines even though fins and scales (and often the skin as well) have been removed since, in his opinion, sardines are readily recognizable and hence substitution of a nonkosher species would immediately be detected by the consumer.
  It has been reported that some rabbinic scholars maintain that fear of civil and criminal penalties for mislabeling of products offered for sale in interstate commerce is halakhically equivalent to the presence of a <i>kashrut</i> supervisor. Although Rabbi Feinstein (<i>Iggerot Mosheh, Yoreh De'ah</i>, I, nos. 47-49) relies upon government regulations in permitting unsupervised milk, as noted, he rejects a similar contention with regard to tuna fish. With the exception of the inconclusive statements found in <i>Helkat Ya'akov</i>, no written responsum expressing the permissive view regarding government regulation and tuna fish is available at present. Presentation of a formal, detailed written opinion by those who espouse this view indicating the nature of their disagreement with the views of Rabbi Henkin and Rabbi Feinstein would be a valuable contribution to halakhic scholarship.
  Another problem arising in the processing of canned tuna fish is the possible use of the same utensils, known as retorts, for the steaming of both tuna fish and canned pet food containing a mixture of fish and nonkosher chicken. A similar question is discussed by Rabbi Yitzchak Weisz, <i>Minḥat Yizḥak</i>, III, no. 26, sec. 5. <i>Pri Megadim, Yoreh De'ah, Mishbezot Zahav</i> 92:29, rules that vapor emitted by a utensil does not render a meat utensil unfit for use provided that the dairy utensil contains no actual milk or milk product at the time the vapor is emitted. The use of a retort seems to constitute an exact parallel of this situation. The tuna fish cans are sealed, and hence the steam is prevented from entering the can. The steam which heats the can does simultaneously come into contact with the retort, but only at a time when there is no actual nonkosher product within the retort. According to the principle laid down by <i>Pri Megadim</i>, vapor or steam which has come into contact only with the wall of a nonkosher utensil does not render kosher food within another sealed container unfit.
  Nevertheless, Rabbi Weisz hesitates to rely on this line of reasoning because of a factual consideration. It is entirely possible, he contends, that in the course of the cooling process which takes places after steaming some of the steam may condense and form a quantity of water. Condensation of steam which has come into contact with a nonkosher utensil does pose a problem with regard to <i>kashrut. Pri Megadim</i> states explicitly that if liquid (as distinct from vapor) which has come into contact with a nonkosher utensil is present and comes into contact with a kosher utensil, the food within the kosher utensil must be regarded as nonkosher. Moreover, at least one authority, <i>Divrei Yosef, Yoreh De'ah</i>, no. 621, disagrees in part with <i>Pri Megadim</i> on halakhic grounds and maintains that, if the kosher and nonkosher utensils actually touch one another, the vapor or steam emitted by the nonkosher utensils renders the kosher utensils and their contents unfit. Rabbi Weisz also points to the danger that some particles of nonkosher food may be present in the retort itself. Nonkosher food that comes into contact with a kosher utensil in the canning process renders both the utensil and its contents nonkosher. Accordingly, care should be taken that separate retorts be used for steaming kosher and nonkosher products.
  Slacks
  Slacks and pantsuits have, for some time, been considered stylish attire for women. While at first these fashions were resisted in observant circles, of late such attire has become increasingly more common. On numerous occasions women have requested rabbinic authorities for a ruling with regard to the halakhic propriety of wearing slacks.
  The question is a two-fold one: (1) Does the wearing of such attire involve a transgression of the biblical prohibition "A woman shall not wear men's apparel" (Deuteronomy 22:5)? (2) Does such garb violate halakhic norms of feminine modesty? Formal opinions in answer to these questions are found in the responsa of the head of the Jerusalem <i>Bet Din</i>, Rabbi Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, XI, no. 62; the <i>Bet Din</i> of the <i>Edah ha-Haredit</i> of Jerusalem, Rabbi Yitzchak Ya'akov Weisz, <i>Minḥat Yizḥak</i>, II, no. 108; and of the late Sephardic scholar, R. Ovadiah Hadaya, <i>Yaskil Avdi</i>, V, <i>Yoreh De'ah</i>, no. 20 and VI, <i>Even ha-Ezer</i>, no. 54. A number of years ago, the question of the propriety of slacks was presented to a number of prominent scholars by Rabbi Yom Tov Lippa Deutsch and their answers appear in Rabbi Deutsch's <i>Taharat Yom Tov</i>, IX, 55 and 77-87.
  More recently, the same question was put to R. Ovadiah Yosef in the course of an "Ask the Rabbi" program conducted by the PAI Synagogue in Tel Aviv while Rabbi Yosef still served as Chief Rabbi of that city. His response, which received wide press coverage at the time, was published in the Sivan-Elul 5732 issue of <i>Shma'atin</i>.
  Rabbi Weisz and Rabbi Waldenberg both espouse a totally nonpermissive position with regard to this question. These authorities assert that such garb violates laws of modesty and, moreover, constitutes male attire, even though women's slacks are cut differently from men's trousers and are somewhat distinctive in appearance. In discussing a similar question with regard to a form of headgear fashionable in his time, <i>Avnei Ẓedek, Yoreh De'ah</i>, no. 72, asserts that minor differences in style do not change the masculine nature of a garmet. In support of his contention, he points to the fact that the same noun was used both for the garment worn by men and for the garment worn by women.
  Rabbi Weisz marshals evidence demonstrating that donning attire associated with the opposite sex is forbidden not only in public but in private as well. Rabbi Weisz also forbids the wearing of ski pants particularly when other items of apparel are identical for both men and women, even though such clothing is designed to afford protection which cannot be assured in any other manner. This also appears to be the position of <i>Divrei Hayyim, Yoreh De'ah</i>, no. 60. <i>Citing Arugat ha-Bosem, Yoreh De'ah</i>, no. 138, sec. 6, Rabbi Weisz further asserts that not only one who himself or herself dresses in the garb of the opposite sex but even one who dresses another person in the garb of the opposite sex is guilty of a transgression. For this reason, according to Rabbi Weisz, it is not permissible to dress even small girls in such garments.
  Not cited by Rabbi Weisz is <i>Avnei Ẓedek'</i>s statement with regard to the type of pants or trousers which were in vogue for women during his day. <i>Avnei Ẓedek</i> declared that such garb was distinctively feminine in nature and, accordingly, permitted women to continue wearing the garment in question. It would appear that insofar as present day styles are concerned at least some types of pantsuits and the like should be deemed equally distinctive and feminine in nature and hence not forbidden as male attire.
  The wearing of a single item of male clothing under circumstances in which the wearer is readily recognized as a female by virtue of her total mode of attire is a matter of dispute. <i>Avnei Ẓedek</i>, citing <i>Baḥ, Yoreh De'ah</i> 182 and <i>Taz</i> 182:4 permits the wearing of a single item of even distinctively male clothing when such a garment is worn as protection against the cold. <i>Avnei Ẓedek</i> quotes an earlier authority who permitted even the wearing of a <i>bekeshe</i> in similar circumstances (and who reports that this was a common practice on the part of women shopkeepers at the time) but stipulated that it be worn together with other items of distinctively feminine apparel. However, Rabbi Shmuel Wosner, one of the scholars whose responsa appear in <i>Taharat Yom Tov</i>, points out that <i>Bet Yosef, Yoreh De'ah</i> 182; Rema 182:5; <i>Taz</i> 182:6; and <i>Shakh</i> 182:7 all rule that it is forbidden for women to wear even a single item of male apparel. This position is based upon the statement of R. Eliezer ben Ya'akov, <i>Nazir</i> 59a, forbidding women to bear arms because armor and weapons are deemed to be male garb. Since women are forbidden to bear arms even though they are otherwise dressed in female attire, it is argued that women may not don even a single article of male clothing.
  All of the rabbis whose views on this matter are published in <i>Taharat Yom Tov</i> replied in the negative. The respondents include R. Eliezer Silver of Cincinnati, Rabbi Akiva Sofer (Pressburger Rav), Rabbi Naftoli Hoenig (Sharmasher Rav), Rabbi Israel Veltz (formerly <i>Dayyan</i> of Budapest), Rabbi Yonatan Steif, Rabbi Levi Yitzchak Gruenwald (Tzelemer Rav), Rabbi Shmuel Wosner of Zichron Meir and Rabbi Yosef Gruenwald (Popper Rav).
  Rabbi Yosef and Rabbi Hadaya do not view the wearing of slacks as a violation of the prohibition against donning male attire. Nevertheless, both decry the wearing of slacks by women for an entirely different reason. Citing <i>Ohalei Ya'akov</i>, no. 70, Rabbi Yosef avers that the wearing of unisex garments, i.e., garments worn by both men and women alike, does not constitute a violation of the prohibition against wearing garb of the opposite sex. <i>Nedarim</i> 49b reports that R. Judah and his wife shared a single garment. Rabbi Judah wore the garment for prayer while his wife donned the same garment when going to the marketplace. While Rabbi Yosef and Rabbi Hadaya are both of the opinion that the wearing of slacks by women does not constitute a violation of "a woman shall not wear a man's apparel," they maintain that wearing such garb constitutes a breach of feminine modesty, particularly if the slacks or pants are tight-fitting in nature. (See Rema, <i>Yoreh De'ah</i> 178:1.)
  The specific question addressed to Rabbi Yosef was, "Which are better, mini-skirts or slacks?" Rabbi Yosef insisted upon rephrasing the question to read, "Which are worse, miniskirts or slacks?" In answering the latter query, he cites <i>Sotah</i> 48a which states, "When men sing and women join in, it is licentiousness; when women sing and men join in, it is like fire in flax. For what practical purpose is this mentioned?—to abolish the latter before the former." Rashi interprets this statement as meaning, "For if [people] will not obey us in abolishing both, we must first abolish that which is as fire in flax." Similarly, argues Rabbi Yosef, miniskirts are more objectionable attire than are slacks, although both are immodest dress. Halakhah requires that the entire thigh, including the upper portion of the knee be covered. Exposure of any portion of the thigh, argues Rabbi Yosef, is a graver violation of feminine modesty than is the wearing of slacks. Rabbi Waldenberg, in an obvious reference to Rabbi Yosef's response, disagrees sharply and opines that both forms of dress are distressing violations of feminine modesty. While there is little doubt that in many instances the type of slacks currently in vogue do not conform with halakhic norms of modest dress, it is difficult to agree that this must necessarily always be the case. For example, an ensemble including slacks designed to be worn under a long modestly cut tunic does not appear to be inherently immodest.
  It appears to this writer that the wearing of slacks by students attending institutions of Jewish learning and others identified as standard-bearers of Jewish observance poses the possibility of a quite different transgression. Rambam, <i>Hilkhot De'ot</i> 5:9, presents a detailed discussion of the garb appropriate for a <i>talmid ḥakham</i>. A Torah scholar is forbidden to wear gaudy or ostentatious clothes, or garments which are demeaning in nature. The Gemara, <i>Shabbat</i> 114a, interprets Proverbs 8:36 as teaching that a scholar who by his conduct or personal appearance causes animosity and scorn toward Torah scholars brings contempt upon the Torah itself. It is quite evident that the term <i>talmid ḥakham</i> in this context does not refer exclusively to one who has excelled in scholarship but to anyone who is viewed by the public as a member of the scholarly community. It would also appear that the dictum, "The wife of a scholar is as a scholar" is applicable with regard to these provisions. The governing concern is that those viewed as exemplars of Torah study, whether male or female, comport themselves in a way which enhances rather than detracts from the honor and esteem in which Torah is held. Hence, it would seem that as long as slacks are viewed as improper attire by significant segments of the Jewish community, the wearing of such garb by those charged with bearing the banner of Torah should not be sanctioned.
  Female Vocalists
  The Gemara, <i>Berakhot</i> 24a, declares, "A woman's voice is provocative, as it says, 'For sweet is your voice and your countenance is comely' " (Song of Songs 2:14). Recognition of the sexually provocative quality of the female voice leads to halakhic ramifications which are two-fold in nature. Since the female voice may arouse sexual desire, halakhic considerations of feminine modesty dictate that a woman should not sing in the company of men. By the same token, a man may not listen to the voice of a female vocalist (<i>Even ha-Ezer</i> 21<i>:</i> 1). Moreover, since the female voice is described as <i>"ervah"</i> or "nakedness," a male may not read the <i>shema</i>, study Torah or recite a blessing when the song of a woman, even of his own wife, is audible to him, just as he may not engage in these activities in the presence of naked or exposed portions of the female body (Oraḥ Hayyim 76:3).
  Writing in the Adar II-Nisan 5736 issue of <i>Ma'ayan ha-Torah</i>, a publication of the Pressburg Yeshivah in Israel, Rabbi Abraham Yafe-Schlesinger of Geneva, Switzerland, analyzes these halakhot and discusses the limited contingencies in which it may be permissible to listen to the singing of women. This material has now been included in Rabbi Yafe-Schlesinger's <i>Teshuvot Be'er Sarim</i>, I, nos. 29–30.
  One authority, <i>Hatan Sofer, Oraḥ Hayyim, Avodat ha-Yom, Sha'ar Taharat Yadayim</i>, no. 14, permits men to listen to the singing of mixed choral groups. This leniency is based upon the talmudic principle, "Two voices cannot be heard," i.e., when two vocal sounds are heard simultaneously neither sound is clearly audible. Hence, argues <i>Hatan Sofer</i>, when men and women sing together, the sound which is perceived is not the voice of a woman but an entirely different auditory perception. <i>Hatan Sofer'</i>s position is rejected by <i>Be'er Yehudah</i>, cited in <i>Ozar ha-Poskim, Even ha-Ezer</i> 21:1, sec. 20:4 and by a contemporary writer, Rabbi Eliyahu Wind, in his compendium <i>Sugah ba-Shoshanim</i> 16:6, as well as by Rabbi Benjamin Silber, <i>Az Nidberu</i>, IX, no. 59.
  Rabbi Yafe-Schlesinger also finds grounds to permit men to listen to a woman sing provided it is for a very brief period of time. <i>Tosafat, Sukkah</i> 47b, citing the Palestinian Talmud, <i>Sotah</i> 3:1, indicates that the priest was permitted tactile contact with a woman in elevating the meal-offering. The explanation given is that since such contact was brief in duration there is no reason to fear arousal of sexual desire. The same principle is applied by Rabbi Yafe-Schlesinger to listening to brief snatches of song.
  Much earlier, shortly after World War II, Rabbi Yechiel Ya'akov Weinberg was asked by the leaders of Jeschurun, a Jewish youth organization in France, whether it was permissible for them to sponsor programs in the course of which boys and girls sang together. Rabbi Weinberg, <i>Seridei Esh</i>, II, no. 8, reports that, still earlier, he had been surprised to discover that in observant homes in Germany men and women habitually sang <i>Shabbat zemirot</i> together even when guests were at the table and that, at first, he had protested against this custom. However, upon investigation he learned that the practice had been sanctioned by Rabbi Samson Raphael Hirsch and by Rabbi Ezriel Hildesheimer. Subsequently he found that <i>Sedei Hemed, Klalim, ma'arekhet ha-kuf</i>, no. 42, cites a Sephardic authority who sanctions this practice on the basis of the principle that "Two voices cannot be heard" adducing as evidence the verse, "Then sang Deborah and Baruch the son of Abinoam on that day" (Judges 5:1). Since Deborah and Baruch apparently sang together this verse appears to demonstrate that there is no objection to mixed singing. However, in another context, <i>Eliyahu Rabbah, Oraḥ Hayyim</i> 75:5, declares that this incident cannot be cited as substantiating any point of normative halakhah since it is to be viewed as an isolated occurrence which was divinely mandated.
  Rabbi Weinberg himself advances another argument in sanctioning mixed singing of <i>Shabbat zemirot</i> and other sacred songs. Citing <i>Sefer ha-Eshkol, Hilkhot Tefillah</i>, no. 4, he argues that listening to the singing of a woman is forbidden only when the listener derives pleasure from the song; when no pleasure is derived from the sound of the voice there is no cause to anticipate erotic stimulation. A person engaged in singing sacred songs, reasons Rabbi Weinberg, is not intent upon deriving pleasure from the female voice and hence there is no prohibition attendant upon women participating in <i>zemirot</i> and the like. See also <i>Seridei Esh</i>, II, no. 14.
  Rabbi Weinberg was fully cognizant that this approach was innovative. He emphasized that women who, because of their upbringing and religious orientation, do not wish to engage in such activities should not be encouraged to do so. The recurring theme in innumerable responsa dealing with this and related issues (<i>Maharam Schick, Even ha-Ezer</i>, no. 53, and <i>Iggerot Mosheh, Oraḥ Hayyim</i>, I, no. 26, to cite but two examples), is "whosoever is stringent in such matters should be spoken of as holy." Nevertheless, recognizing the needs of the hour and the phenomenal success of youth organizations in winning the hearts and minds of children who would otherwise be lost to Torah Judaism, Rabbi Weinberg, in this instance, deemed it necessary to encourage such programs in light of their proven pedagogic and inspirational value.
  Rabbi Weinberg's original negative reaction is indeed substantiated by numerous authorities. <i>Ozar ha-Poskim, Even ha-Ezer</i> 21:1, sec. 20:3, cites numerous authorities, including <i>Be'er Sheva, Kuntres Be'er Mayyim Hayyim</i>, sec. 3; <i>Yosef Omez</i>, no. 602; <i>Menaḥem Meshiv</i>, no. 26; <i>Hazon la-Mo'ed</i>, no. 5; Rabbi Israel Veltz, <i>Ha-Nesher</i>, 5694, p. 64 and others who specifically forbid listening to women singing <i>Shabbat zemirot</i> and the like.1<i class="footnote">Rabbi Silber cites <i>Be’er Sheva, Be’er Mayim Ḥayyim</i>, no. 3, in pointing out that quite apart from the prohibition against listening to female song, a man may not sing certain <i>Shabbat zemirot</i> if women are singing at the same time. It is forbidden to recite the <i>shema</i> or to study Torah when the voice of any female is audible. Hence it is forbidden to sing, or to recite, <i>shir ha-ma‘alot or</i> any other song which has biblical passages as its text while women are singing <i>zemirot</i> because the singing of such songs is actually Torah study as well. <i>Zemirot</i> of this nature, declares Rabbi Silber, may not even be sung by husband and wife together just as the husband may not recite <i>shema</i> while his wife sings.</i> Similar sources are cited by Rabbi Veltz in his newly-published <i>Teshuvot Divrei Yisra'el, Oraḥ Hayyim</i>, no. 35.
  <i>Yishrei Lev, Even ha-Ezer</i> 100:12, is quoted as stating that the rabbis of <i>Erez Yisra'el</i> protested when a woman crooned her baby to sleep in the presence of men despite the fact that she was singing sacred melodies in praise of God. There is, however, another source which supports Rabbi Weinberg's opinion. <i>Sedei Hemed, Klalim, ma'arekhet ha-kuf</i>, no. 42, cites an earlier authority, <i>Divrei Hefez</i> 113b, who advances precisely the same thesis as Rabbi Weinberg. <i>Divrei Hefez</i> permits men to listen to women singing hymns of praise to God, crooning a baby to sleep and lamentations for the dead since it may be assumed that they do not seek to derive pleasure from the female voice in such circumstances.
  Female Vocalists on the Radio
  The question of whether or not it is permissible to listen to songs sung by women on the radio or on a gramophone is discussed briefly by Yitzchak Cohen in the Av 5737 issue of <i>Or Torah</i>. The question, to be sure, is not a new one and has been widely discussed in responsa literature. The various sources dealing with the question are cited by Rabbi Solomon Braun, <i>She'arim ha-Mezuyanim be-Halakhah</i>, I, 42:10; Rabbi Ovadiah Yosef, <i>Yabi'a Omer</i>, I, Oraḥ Hayyim, no. 6; R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, V, no. 2; and <i>Ozar ha-Poskim, Even ha-Ezer</i> 21:1, sec. 20:5.2<i class="footnote">See also sources cited by R. Chanoch Safran, <i>Teshuvot mi-Ben ha-Meḥaber</i>, no. 6, appended to R. Betzalel Ze’ev Safran, <i>Teshuvot ha-Rabaz</i>, I (Jerusalem, 5722).</i>
  The earliest authority to issue a permissive ruling with regard to a similar question is <i>Maharam Schick, Even ha-Ezer</i>, no. 53. The Gemara, <i>Sanhedrin</i> 45a and <i>Sotah</i> 8a, declares that sexual desires are aroused by vocal stimuli only when accompanied by visual perception. Rabbi Aryeh Yehudah ha-Kohen, <i>Sha'arei Torah</i>, VIII, no. 73 compares the female voice to the hair of a married woman and argues that just as there are no restrictions with regard to hair which has been severed from the body, so also there are no restrictions with regard to the disembodied voice. Although the argument may be apropos with regard to the question of "nakedness," the analogy does not serve to establish that the recorded voice is not sexually provocative. <i>Tosafot</i>, however, cites <i>Megillah</i> 15a which records that the mere mention of the name of Rahab—a courtesan of Scriptural fame (Joshua 2:1-22)—was sufficient to cause sexual arousal even in the absence of visual stimulation. <i>Tosafot</i> resolves the apparent contradiction between this statement and the statements found in <i>Sanhedrin</i> 45a and <i>Sotah</i> 8a by noting that the Gemara posits such arousal only in the case of a woman with whom the individual is already acquainted.3<i class="footnote">See <i>Tosafot, Ta‘anit</i> 5b, and cf., Maharsha, <i>Megillah</i> 15a.</i> A similar distinction is explicitly made by the Gemara, <i>Avodah Zarah</i> 20b, in the discussion of an analagous halakhah. Accordingly, <i>Teshuvot Bet She'arim, Oraḥ Hayyim</i>, no. 33; Rabbi Yehudah Leib Zirelson, <i>Teshuvot Ma'arkhei Lev</i>, no. 5; and Rabbi Ze'ev Wolf Leiter, <i>Teshuvot Bet David</i>, no. 188, rule that listening to a female vocalist is forbidden only when the listener sees the singer as well, or, alternatively, when the listener is acquainted with the vocalist.4<i class="footnote">This is also the opinion of <i>Imrei David</i>, no. 85 and Rabbi Shalom Yosef Feigenbaum, <i>Sha‘arei Torah</i>, VII, no. 113, sec. 3.</i>
  Rabbi Yosef concurs in this ruling but adds that it is forbidden to listen to a female vocalist who is known to the listener even if the woman in question is known to him only through photographs. It would then, <i>a fortiori</i>, be forbidden to listen to a female vocalist appearing in a motion picture since the appearance of the picture actually coincides with the auditory perception. An identical distinction is drawn by Rabbi Menasheh Klein, <i>Mishneh Halakhot</i>, V, no. 224. Rabbi Klein, although he brands the practice distasteful (<i>mekhu'ar ha-davar</i>), nevertheless finds no technical prohibition against listening to the radio voice of a woman who is not an acquaintance, but forbids a male to avail himself of television entertainment of this nature.5<i class="footnote">See also <i>Kuntres Ḥakhmei Yisra’el, kuntres</i> 8, no. 166.</i>
  A more restrictive ruling was issued by Rabbi Eliezer Deutsch, <i>Pri ha-Sadeh</i>, III, no. 32, and later by Rabbis Ya'akov Breisch, <i>Helkat Ya'akov</i>, I, no. 163; Shmuel ha-Levi Wosner, <i>Shevet ha-Levi</i>, III, <i>Even ha-Ezer</i>, no. 181; and Benjamin Silber, <i>Az Nidberu</i>, IX, no. 9. These authorities prohibit listening to female vocalists on the radio in all circumstances.6<i class="footnote"><i>Pri ha-Sadeh</i> is cited incorrectly by <i>She‘arim ha-Meẓuyanim be-Halakhah</i> as permitting this practice.</i> They argue quite simply that the prohibition concerning listening to female vocalists is based upon the ability of the voice itself to arouse desire.7<i class="footnote">This is also the opinion of <i>Ohel Mosheh</i>, I, 32, sec. 3, and <i>Birkat Ḥayyim</i>, no. 21.</i> The statements in the Gemara which posit a lack of arousal in the absence of visual perception, they contend, are limited to cases in which sensual stimulation is totally lacking. Rabbi Wosner argues that even Maharam Schick permitted only solicitous inquiries with regard to women who are not acquaintances but did not rule that it is permissible to listen to female singers on the radio or records. Rabbi Silber cites <i>Mesilat Yesharim</i>, chap. II, in developing the argument that the prohibition against listening to female song is a prohibition entirely independent of any prohibition against arousal of sexual desire.
  Rabbi Y. M. Toledano, <i>Teshuvot Yam ha-Gadol</i>, no. 29, differentiates, although unconvincingly, between listening to a vocalist on the radio and listening to a recording of a female voice. Rabbi Toledano forbids listening to the broadcast voice of a female vocalist but permits listening to the same song on a record. He argues that while it is a true female voice which is broadcast over the radio, a recorded voice is, in effect, a disembodied voice.8<i class="footnote">It might, however, be cogently argued that the recorded female voice retains its erotic quality but does not constitute nakedness. If so, a man may not be permitted to listen to the recorded voice of a woman other than his wife but would nevertheless be permitted to recite <i>kri’at shema</i> while listening to his wife’s recorded voice. The prohibition with regard to <i>kri’at shema</i> is based upon the consideration that the sound of the female voice is tantamount to “nakedness.” Since the recorded voice does not have this status a man might then recite <i>kri’at shema</i> even though his wife’s voice is audible. See R. Aryeh Yehudah ha-Kohen, <i>Sha’arei Torah</i>, VIII, no. 73.</i> This distinction is rejected by Rabbi Silber in his halakhic compendium, <i>Bet Barukh</i> 6:32.
  It should be noted that none of the discussions heretofore cited seeks to draw an analogy based upon various discussions of the question of listening to the blowing of the shofar or the reading of the <i>Megillah</i> on the radio. The two situations are not at all analogous. With regard to the blowing of the shofar, the actual sound of the shofar must be heard; with regard to the <i>Megillah</i>, the actual voice of the reader must be heard. However, the female voice, it may be argued, has the status of <i>ervah</i> because of its sexually provocative quality. Hence, the sole relevant question is whether or not this quality is in any way mitigated by projection over the airwaves. The only authority who regards the question of listening to a female voice on the radio as identical to the question concerning hearing the sound of the shofar and the reading of the <i>Megillah</i> on the radio is R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, V, no. 2, sec. 5.
  Settlement in Egypt
  Recent events have focused the attention of the entire world upon diplomatic relationships now being forged between Jerusalem and Cairo. Diplomatic shuttles between Jerusalem, Cairo, Aswan and Ismailia have already brought in their wake pleasure jaunts ferrying tourists between the holy places and the pyramids. With the establishment of normal relations between Israel and Egypt it will undoubtedly become possible for Jews not only to enter Egypt as tourists but also to consider establishing residence in that country for longer periods of time. In point of fact, renewed discussion in recent years of the permissibility of permanent domicile in Egypt actually antedates the events leading to the establishment of diplomatic ties between Israel and Egypt.
  The rout of the Egyptian Third Army in the aftermath of the Yom Kippur War found Israeli troops within some fifty miles of Cairo. Having crossed the Red Sea in pursuit of the aggressor, the Israeli army, for a time, occupied a significant segment of Egyptian territory. During that period, a number of army camps were established. The soldiers settled into a nearly normal routine of life, even to the point of establishing a "yeshivah" for Torah study. Of course, the capture and holding of this territory were, at the time, vital to the security and defense of the State of Israel. The phenomenon of a new Jewish "settlement" in Egypt did, however, generate interest in the question of whether settlement within the boundaries of biblical Egypt would be permissible even in the absence of danger. The opinions of various rabbinic authorities regarding the parameters of the prohibition against residence in Egypt are collected and discussed in the 5735 issue of <i>Torah She-be-'al Peh</i>, in two separate contributions authored by Rabbi Judah Gershuni and Rabbi Shiloh Raphael.9<i class="footnote">See also R. Aaron Kahn, <i>Or ha-Mizraḥ</i>, Iyar-Tammuz 5739.</i>
  Interesting, not only from the perspective of Halakhah, but also as a historical sidelight is that, now, several years later, following the late President Sadat's visit to Jerusalem, Israeli reporters were invited to cover subsequent developments in Egypt. A number of reporters inquired of Rabbi Ovadiah Yosef whether or not it was permissible for them to travel to Egypt in order to do so. The response, which deals not only with a temporary sojourn but with permanent residence as well, appears in the Adar 5738 issue of the Sephardic Torah journal, <i>Or Torah</i>.
  Although residence in Egypt seems to be explicitly forbidden by Scripture, many Jewish communities did thrive in Egypt over the centuries, apparently without evoking the censure of rabbinic authorities in the post-talmudic era. Indeed, Rambam himself lived in Egypt for many years. It is unthinkable that Rambam willingly committed a transgression in doing so, although R. Estori ha-Farḥi, <i>Kaftor va-Feraḥ</i>, chapter 5, reports that, while visiting Egypt, he was informed by a grandson of Rambam that the latter was wont to append to his signature the legend "who each day transgresses three negative commandments," i.e., the three biblical prohibitions against residence in Egypt. R. Jeruchem Fishel Perle, in his commentary to <i>Kaftor va-Feraḥ, Pirḥei Zion</i> (Jerusalem, 5706), p. 184b, cites R. Ya'akov Emden's incredulity in questioning the authenticity of this report. Rabbi Reuben Margulies, <i>Margaliyot ha-Yam, Sanhedrin</i> 21b, reports that this legend is not to be found affixed to any of the many extant letters and responsa of Rambam. <i>Kaftor va-Feraḥ</i> as well as Radbaz, in his commentary to Hilkhot Melakhim 5:7, assert that the government authorities did not permit Rambam to leave Egypt because of their desire to retain his services as a physician to the Egyptian court.
  In any event, the establishment of Jewish communities in Egypt, apparently with rabbinic sanction, indicates that residence in Egypt is permissible at least under some circumstances. The following are the varying and diverse views set forth by different authorities with regard to the ramifications of the prohibition against residence in Egypt:
  1. Rambam records the prohibition against residence in Egypt both in <i>Sefer ha-mizvot</i>, negative commandment no. 46, and in <i>Mishneh Torah, Hilkhot Melakhim</i> 5:7-8. In <i>Sefer ha-mizvot</i> Rambam cites three separate verses as sources for this prohibition: "You shall henceforth return no more this way" (Deuteronomy 17:16); "… by the way whereof I said unto you, 'You shall see it no more again' " (Deuteronomy 28:68); and "For whereas you have seen Egypt today, you shall see them again no more forever" (Exodus 14:13). In citing all three verses as negative commandments Rambam follows the Palestinian Talmud, <i>Sukkah</i> 5:1. The Babylonian Talmud, <i>Sukkah</i> 51b, however, cites only Deuteronomy 17:16. Maharsha explains that, for the Babylonian Talmud, Exodus 14:13 is a promise rather than a prohibition. Deuteronomy 28:68 is presumably viewed as a threatened punishment rather than as a prohibition. Basing himself upon the Palestinian Talmud, Rambam declares that the prohibition is limited to permanent residence. Accordingly, it is permissible to return to Egypt for business purposes or for other reasons which involve only temporary domicile. Rambam further rules that it is permissible to reside in Egypt if the land is conquered by "a king of Israel" with the approval of the Sanhedrin "since [the Torah] forbids [us] only return to [Egypt] as individuals or to dwell therein while it is in the hands of idolaters." The reason, as explained by Rambam, is that settlement in Egypt is forbidden because of the degenerate moral character of the ancient Egyptians. Reference to the immorality of ancient Egypt is made in Leviticus 18:13. Hence, when Egypt is under the dominion of Israel, Jews are permitted to reside in that land.
  A number of commentaries question why, according to Rambam, the prohibition should remain in effect in our day. The prohibition, states Rambam, is predicated upon the immorality of the ancient Egyptians. The <i>Tosefta, Kiddushin</i> 5:6, reports that Sennacherib, King of Assyria, upon conquering most of the civilized world of his day, effected forced population transfers among the nations under his domain in order to solidify his rule. As a result, the peoples of antiquity are no longer ethnically identifiable. If descendants of the morally degenerate Egyptians of antiquity no longer inhabit Egypt, why should settlement in that country be forbidden? <i>Torat ha-Melekh, Hilkhot Melakhim</i> 5:7, answers that while Sennacherib forcibly removed the bulk of the Egyptian population and resettled them elsewhere, a significant number undoubtedly remained in Egypt and, for that reason, settlement in Egypt remains forbidden. R. Chaim Joseph Azulai, <i>Hayyim Sha'al</i>, I, no. 91, sec. 4, infers from Rambam's choice of language that the prohibition against living in Egypt remains in effect even if that country is inhabited by other non-Jews. Rambam states that it is forbidden to live in Egypt not "while it is in the hands of Egyptians," but rather "while it is in the hands of <i>akum,"</i> i.e., idolaters or gentiles. Technically, then, the prohibition is against residence in the <i>land</i> of Egypt rather than against living among Egyptians.
  2. R. Eliezer of Metz, <i>Sefer Yere'im</i>, no. 309, opines that the ban against settlement in Egypt is not a restriction against residence in Egypt but a restriction against <i>return</i> to the land. As a prohibition against return, the commandment restricts only "return … this way" (Deuteronomy 17:16), i.e., by way of the route travelled by our ancestors in departing from Egypt. R. Joseph Saul Nathanson, in his commentary on the Pentateuch, <i>Divrei Sha'ul</i>, remarks that the detailed scriptural description of the route travelled by the generation of the Exodus is of more than historical significance. It serves to delineate the route by which Jews are forbidden to return to Egypt. Return by other routes is permitted. Ritva, <i>Yoma</i> 38a, also interprets <i>Sefer Yere'im</i> in this fashion. <i>To'afot Re'em</i>, a commentary on <i>Sefer Yere'im</i>, refutes this interpretation by citing <i>Sukkah</i> 51b which declares that the Jewish community of Alexandria was annihilated because its members had established a settlement in Egypt in violation of the biblical commandment. According to <i>Divrei Sha'ul'</i>s analysis, the Alexandrian Jews, who presumably did not return via the route mapped out in the Bible, should not have been deemed transgressors. Since the Gemara reports that they were punished, it may be inferred that the prohibition is broader than asserted by <i>Divrei sha'ul</i>. <i>Teshuvot Dei Hashev, Yoreh De'ah</i>, no. 15, and <i>Ma'aseh Bezalel</i>, no. 573, interpret <i>Sefer Yere'im</i> as meaning that it is forbidden to return to Egypt from the Land of Israel but that return to Egypt from other countries is not forbidden.
  3. Rabbenu Baḥya, in his commentary on the Bible, Deuteronomy 17:16, states that this prohibition is directed against living among Egyptians rather than against establishing residence in the land of Egypt and is designed to prevent Jews from imitating the immoral life-style of the Egyptians. According to Rabbenu Baḥya, the prohibition forbids only living among the degenerate Egyptians of the time of the Exodus and was not intended to apply to later generations. This is also the position of Rabbenu Meyuḥas ben Eliyahu, as found in his recently published commentary on the Bible (Jerusalem, 5728). The obvious problem with regard to this position is that it appears to be contradicted by the previously cited statement of <i>Sukkah</i> 51b to the effect that the Jews of Alexandria sinned in settling in Egypt.
  4. Ritva, <i>Yoma</i> 38a, declares that the prohibition against residence in Egypt was in force only as long as the people of Israel dwelled in <i>Erez Yisra'el</i>. During the exile, when Israel is dispersed among the peoples of the world, no land is forbidden to them. Rabbi Isaac ha-Levi Herzog, <i>Heikhal Yizḥak, Even ha-Ezer</i>, I, no. 12, questions whether according to Ritva, the prohibition is not again applicable in our own day, subsequent to the establishment of a Jewish homeland in <i>Erez Yisra'el</i>.
  5. Ritva cites yet another opinion. "Some say" that the prohibition is no longer in effect since the Egyptian cities of antiquity have been destroyed and their populace dispersed by Sennacherib. According to this view, the restriction is directed against living among Egyptians, but not against residence in the land of Egypt. <i>Hayyim Sha'al</i>, I, no. 9, sec. 2, argues that this view is not compatible with the Gemara's assertion that the Jews of Alexandria were punished for having returned to Egypt. Rashi, <i>Sukkah</i> 51b, indicates that the Alexandrian community was established after the destruction of the First Temple, during the time of Jeremiah, after Sennacherib effected the transfer of populations. Similarly, <i>Mekhilta Beshalaḥ</i>, 2:13, speaks of instances of punishment for return to Egypt subsequent to the time of Sennacherib. An identical view is tentatively set forth by <i>Sefer mizvot Gadol</i>, negative commandment 227, and rejected because of precisely this objection.
  Rabbi Yosef, seizing upon the phrase, "and these cities are different ones which were settled afterwards," understands this opinion in an entirely different manner. According to Rabbi Yosef's interpretation, the meaning of this statement is that the geographic location of Egypt of today is not identical with that of Egypt of the Bible. The cities inhabited by Rambam and others were not part of ancient Egypt and hence Jews may reside in such places without restriction. Indeed, Rabbi Ya'akov Castro, in a gloss to <i>Even ha-Ezer</i> 128, declares that the city of Cairo is not within the boundaries of ancient Egypt. Citing Sa'adia Ga'on's translation of Numbers 13:22, R. Castro identifies Egypt of antiquity with the area surrounding Fostat. Rabbi Yosef points out, however, that the basic question is not really resolved since Alexandria was within the boundaries of Egypt, as indicated by <i>Sukkah</i> 51b, and Jews nevertheless resided in Alexandria over a period of centuries.
  6. While at least some of the other authorities cited maintain that the essence of the prohibition is residence among Egyptians, <i>Sefer Yere'im</i> clearly maintains that the essence of the prohibition is return to the <i>land</i> of Egypt. Mahari Perle, in his commentary on the <i>Sefer ha-mizvot</i> of R. Sa'adia Ga'on, and <i>Minḥat Eliyahu</i>, no. 37, maintain that there are two distinct prohibitions, one against residence in Egypt and a second against settlement among the people of Egypt. Exodus 14:13, "You shall see them again no more," implies a prohibition against settlement among the people, while the other two verses refer to return to the land of Egypt. Rabbi Gershuni and Rabbi Raphael both endeavor to show that this is also the position of Rashi in his commentary to both <i>Sanhedrin</i> 21a and Exodus 14:13, as well as that of <i>Sefer Yere'im</i>.
  Rashi explains that the prohibition against a king amassing horses is predicated upon the fear that a king who maintains an interest in horses would send purchasing agents to Egypt, a country once renowned for fine horses, and thus violate the prohibition against returning to Egypt. Ramban, <i>Commentary on the Bible</i>, Deuteronomy 17:16, rejects this rationale, pointing out that the Palestinian Talmud explicitly permits return to Egypt for purposes of commerce.10<i class="footnote">Cf., however, <i>Ḥayyim Sha’al</i>, who offers a different interpretation of Rashi’s position.</i>
  In arguing that return to Egypt from countries other than <i>Erez Yisra'el</i> is permitted, <i>Sefer Yere'im</i> cites <i>Sanhedrin</i> 93a, which reports that at the time that Hananiah, Mishael and Azariah were cast into the burning oven, Daniel was sent to bring swine from Alexandria. Since there is no prohibition against journey to Egypt for business purposes, Daniel's action in this regard does not at all appear to support <i>Sefer Yere'im'</i>s thesis.
  In explanation of <i>Sefer Yere'im'</i>s position, Rabbi Raphael argues that, insofar as the ban against residence in the land is concerned, there is indeed a distinction between permanent dwelling and temporary residence for business purposes and the like. However, insofar as the prohibition against settling among the people of Egypt is concerned, no such distinction can be drawn. Accordingly, return to Egypt even for purpose of commerce is, infact, included in the biblical prohibition. The statement found in the Palestinian Talmud which permits return for purposes of commerce must be understood as permitting return to Egypt only subsequent to the displacement of the Egyptian populace by Sennacherib. Since the inhabitants of Egypt are no longer the Egyptians of antiquity, temporary residence in Egypt is now permissible.11<i class="footnote">It should be noted, however, that Daniel’s return to Egypt occurred subsequent to the population exchange at the time of Sennacherib. Thus Daniel would have been permitted to return for purposes of commerce even from the land of Israel and the incident would not serve to demonstrate that return to Egypt from other lands is not forbidden. <i>Sefer Yere’im</i> is able to cite this narrative in support of his thesis because he follows the opinion of R. Joshua, recorded in the <i>Tosefta, Yedayim</i> 2:8, who maintains that Egypt was not permanently affected by Senna-cherib’s population exchange. In this context the <i>Tosefta</i> cites the verse, “At the end of forty years will I gather the Egyptians from the people whither they were scattered” (Ezekiel 29:13). The opinion of R. Joshua is rejected by all other authorities.</i>
  7. <i>Teshuvot Radbaz</i>, IV, no. 73, notes that only permanent residence in Egypt is forbidden as is indeed stated explicitly by Rambam, Hilkhot Melakhim 5:8. Radbaz offers an <i>apologia</i> for the conduct of those who lived in Egypt by stating that their residence was merely transient in nature since all Jews eagerly anticipate the opportunity to settle in <i>Erez Yisra'el</i>.
  8. <i>Pirḥei Ẓion</i> explains that Rambam was willing to live in Egypt because in our day there is no greater prohibition involved in living in Egypt than in living in any other country. Rambam, <i>Hilkhot Avodah Zarah</i> 7:9, rules that is is forbidden to enter any city containing idols. In his <i>Commentary on the Mishnah, Avodah Zarah</i> 1:4, Rambam adds that, in our day, we have no choice and are forced to live in such cities since all cities contain edifices devoted to idolatry. Since all places are, in actuality, prohibited as places of residence, our justification for residing in such places is that the necessities of life force us to do so. This justification applies to residence in Egypt as well, since removal of one's residence to another country would also involve violation of a prohibition.
  9. Rabbi A. I. Kook, <i>Mishpat Kohen</i>, no. 145, advances the novel view that the prohibition against return to Egypt devolves only upon individuals, but that entire communities may establish settlements in Egypt. This position, he maintains, is that of Rambam. Rambam's terminology in Hilkhot Melakhim is usually understood as distinguishing between individual settlement as against conquest by a king. Rabbi Kook, however, interprets Rambam quite literally as permitting settlement by any community. According to Rabbi Kook, it must be assumed that Alexandrian Jews were punished despite the fact that they constituted a community because they had originally transgressed in returning to Egypt as individuals.
  War and Non-Jews
  The prophet Habakkuk asks plaintively, "Why … art Thou silent when the wicked swallows up the man more righteous than he? For Thou makest men as the fish of the sea" (Habakkuk 1:13–14). Among the myriad species of the animal kingdom there is virtually none which preys upon its own kind. Carnivorous animals will devour other animals but not members of the same species. Preying upon members of the creature's own species is a phenomenon which is found only among the fish of the sea. Even a fish will swallow only a fellow creature smaller than itself. Man is unique among land animals in his propensity for attacking and destroying his fellow man. Man outdoes the fish in destroying not only others smaller and weaker than himself, but also in attempting to swallow up others equal to and better than himself.
  "Pray for the welfare of the government, for without fear of [the government] men would swallow one another alive," advises the Mishnah, <i>Avot</i> 3:2. The base instincts of man are curbed only by fear. Individuals have reason to fear the power of the state. States, however, are subject to no higher temporal authority and hence have no reason for fear. Nations, as human institutions, give collective expression to the selfsame base instincts which are inherent in the individuals of whom they are comprised. As a result, nations, in their relationships with one another, behave precisely in the manner which the Mishnah putatively ascribes to individuals: they "swallow one another alive."
  The nations of the world have indeed attempted to regulate warfare, but its elimination remains a utopian ideal which eludes mankind. The Geneva Convention, the United Nations Charter and international treaties of friendship have certainly not effected a metamorphosis in the basic nature of man. There is a story told about a missionary who was sent on a mission into the wilds of Africa. When asked by his superiors to submit a report there was little of a positive nature for which he could claim credit. "Well," he was asked, "did you at least succeed in eradicating cannibalism in your area?" "No," he replied, "the natives are still cannibals, but at least they now eat with knives and forks." Renunciation of chemical and biological warfare, humane treatment for prisoners of war, etc., are certainly marks of "civilized" peoples, but on a more fundamental level such matters are little different from a convention requiring cannibals to eat with knives and forks. "Civilized warfare" is inherently a self-contradiction.
  Halakhah, as it applies to Jews, recognizes that man has no right to make war against his fellow. War is sanctioned only when commanded by God, i.e., when divine wisdom dictates that such a course of action is necessary for fulfillment of human destiny. Even a <i>milḥemet reshut</i>, or "discretionary war" is discretionary only in the sense that it is initiated by man and does not serve to fulfill a divine commandment. But even a <i>milḥemet reshut</i> requires the acquiescence of the <i>urim ve-tumim;</i> the message transmitted via the breastplate of the High Priest is a form of revelation granting divine authority for an act of aggression. Judaism sanctions violence only at the specific behest of the Deity. Human reason is far too prone to error to be entrusted with a determination that war is justified in the service of a higher cause. Such a determination can be made only by God Himself.
  The teachings of Judaism with regard to non-Jews are somewhat more complex. Non-Jews are not held to the same standards of behavior as Jews. Although the Noachide Code, which embodies divine law as it is binding upon non-Jews, prohibits murder it does not necessarily prohibit as an act of murder the taking of human life under any and all circumstances. It is quite clear that when confronted by a situation in which an individual's life is threatened, all persons, non-Jews as well as Jews, have an absolute right to eliminate the aggressor in self-defense.12<i class="footnote">See <i>Sanhedrin</i> 57a; R. Yehudah Rosenbaum, <i>Teshuvot Ben Yehudah</i>, no. 21; <i>Minḥat Ḥinnukh</i>, no. 296.</i> <i>"Ha-ba le-horgekha hashkem le-horgo</i>—If one seeks to kill you, kill him first" (<i>Sanhedrin</i> 72a) is a principle which applies to Noachides as well as to Jews. Accordingly, a defensive war requires no further justification.
  I
  In situations in which an individual's own life is not directly threatened, but a threat exists with regard to the life of another human being, Jews are bound by the law of the "pursuer" (<i>rodef</i>). Jewish law not only permits, but demands, that anyone finding himself in the position of being able to save the life of an intended victim must do so, even if such rescue necessitates sacrificing the life of the pursuer.
  The question which requires examination is whether the law of pursuit which mandates intervention by a third party in order to save the life of an intended victim extends to Noachides as well. <i>Minḥat Hinnukh</i>, no. 296, concludes that Noachides have discretionary authority to intervene in such situations but do not have an absolute obligation to do so.
  The Gemara, <i>Sanhedrin</i> 73a, attempts to derive the "law of the pursuer" from the commandment "You shalt not stand idly by the blood of your neighbor" (Leviticus 19:16). This commandment establishes a general obligation to come to the aid of a person whose life is endangered. Ultimately the Gemara derives an obligation to preserve the life of the victim even if it is necessary to sacrifice the life of the pursuer in order to accomplish this end from the verse "For … the betrothed damsel cried and there was none to save her" (Deuteronomy 22:27). From this statement the Gemara infers that were a bystander to be present he would be obligated to preserve the betrothed damsel from violation by any means possible, including summary execution of the would-be rapist. By virtue of the juxtaposition (<i>hekesh</i>) of homicide and rape of a "betrothed damsel" in the immediately prior verse the Gemara derives a binding obligation requiring any and all bystanders to intervene and to preserve the life of the intended homicide victim by any means possible.
  <i>Minḥat Hinnukh</i> cogently argues that the commandments expressed in Leviticus 19:16 and Deuteronomy 22:27 are incumbent only upon Jews and hence cannot establish obligations upon non-Jews who are bound only by the provisions of the Noachide Code. <i>Minḥat Hinnukh</i> does, however, adduce another source which serves as a basis for derivation of the "law of the pursuer" and which is applicable to Noachides as well. The Gemara, <i>Sanhedrin</i> 72b, cites the verse "Whosoever sheddeth the blood of man, by man shall his blood be shed" (Genesis 9:6) as granting dispensation to preserve the intended victim by eliminating the pursuer. The phrase "by man" is understood as calling for the shedding of blood "by any man," i.e., by persons witnessing the act, rather than as a reference to punitive measures to be undertaken subsequent to the act. Thus the Gemara understands the verse as referring, not to an act of homicide which has already been committed, but to the prevention of a would-be homicide. The verse, which was addressed to Noah, establishes a law not only for Jews, but for Noachides as well. The general principle is that any commandment given prior to Sinai is binding upon Noachides even subsequent to the Sinaitic revelation provided it has been reiterated at Sinai. The law of the pursuer is indeed repeated in Exodus 22:1. In the course of the same discussion, the Gemara, <i>Sanhedrin</i> 72b, states that the statute formulated in this passage, which provides that a thief who breaks into a dwelling during the night may be smitten without penalty, is based upon the assumption that the thief is intent not only upon larceny but will commit homicide as well if he meets resistance. Hence the thief is in effect a pursuer and may be put to death if necessary by virtue of the "law of the pursuit." <i>Tosafot, Sanhedrin</i> 72a, commenting on the redundancy of the multiple scriptural sources for the "law of pursuit" states that Exodus 22:1 serves only to establish a license for execution of the pursuer but does not make such a course of action obligatory. The obligation, according to <i>Tosafot</i>, is expressed solely in Deuteronomy 22:27. <i>Minḥat Hinnukh</i> assumes that <i>Tosafot</i> intends this comment to apply as well to the interpretation of Genesis 9:6, which presents the same difficulty. The phrase <i>ba-adam damo yishafekh</i>, according to <i>Minḥat Hinnukh</i>'s understanding should thus be translated "by man <i>may</i> his blood be shed" and serves to grant permission to put the aggressor to death when necessary to preserve the life of the victim, but does not mandate such action.13<i class="footnote">R. Shlomoh Zevin, <i>Le-Or ha-Halakhah</i>, p. 17, argues against <i>Minḥat Ḥin nukh’s</i> position and maintains that Noachides are not merely permitted, but are obligated, to execute the pursuer in order to preserve the pursued. He argues that this is evident from the phrase “<i>domo yishafekh”</i> which he maintains must be translated “by man <i>shall</i> his blood be spilled.” It would, however, appear that the question raised by <i>Tosafot, Sanhedrin</i> 73a, s.v. <i>af</i>, with regard to the earlier cited verse which speaks of the <i>ba ba-maḥteret</i> applies with equal validity to this verse. It would appear that <i>Tosafot’s</i> statement that the verse establishes permission rather than obligation applies to the subsequently cited verse “<i>ba-adam damo yishafekh”</i> as well.</i> Accordingly, concludes <i>Minḥat Hinnukh</i>, Noachides are justified not only in acting in self-defense but may eliminate a threat to the lives of others as well, even though, in contradistinction to Jews who are bound by Sinaitic revelation, they are under no obligation to do so.
  Another authority, R. Meir Dan Plocki, <i>Hemdat Tisra'el</i> (New York, 5725), p. 178, citing <i>Zekhuta de-Avraham</i>, argues that a non-Jew is not only permitted but, according to Rambam, is obligated to kill an aggressor in order to preserve the life of the intended victim. <i>Hemdat Tisra'el bases</i> his argument upon Rambam's understanding of the <i>mizvah</i> of <i>dinin</i>, the last of the seven commandments which constitute the Noachide Code. According to Rambam, the commandment of <i>dinin</i> establishes an obligation binding upon non-Jews to enforce the provisions of the Noachide Code and to punish Noachide transgressors. Accordingly, argues <i>Hemdat Yisra'el</i>, a non-Jew must kill the aggressor, not by virtue of the "law of the pursuer," but because of the <i>mizvah</i> of <i>dinin</i> which obliges every Noachide to enforce the provisions of the Noachide Code which <i>inter alia</i> provides for the execution of murderers. <i>Hemdat Yisra'el</i> does express some reservation with regard to this argument. He expresses uncertainty with regard to whether the commandment of <i>dinin</i> mandates only execution of transgressors after the fact, or whether it requires intervention in the sense of "prior restraint" as well in order to prevent an infraction of the Noachide Code. However, examination of Rambam's ruling in Hilkhot Melakhim 9:14 should dispel any doubt with regard to this point. Rambam rules that Noachides are required, by virtue of the <i>mizvah</i> of <i>dinin</i>, to establish a judiciary system. The courts are required both to execute judgment and "to admonish the populace." The obligation "to admonish the populace" certainly establishes an obligation with regard to prior restraint in enforcing the Noachide Code. Although Rambam does not explicitly state that Noachides are empowered to use lethal force in preventing such infractions it may well be argued that the Noachide court may use whatever coercive measures the situation may require in order to accomplish this end. Since the <i>mizvah of dinin</i> is incumbent not only upon an established judiciary but also upon every individual Noachide it then follows that any Noachide may use lethal force, if necessary, in order to prevent commission of a capital transgression by another Noachide.
  Three other authorities, R. Isaac Schorr, <i>Teshuvot Tevu'ot Shor</i>, no. 20, p. 32b; R. Isaac Schmelkes, <i>Teshuvot Bet Yizḥak, Yoreh De'ah</i>, II, no. 162, sec. 4; and R. Chaim Soloveitchik, <i>Hiddushei Rabbenu Hayyim ha-Levi al ha-Rambam, Hilkhot Rozeaḥ</i> 1:9, clearly state that Noachides no less than Jews are obligated to eliminate an aggressor in order to preserve the life of an intended victim. These authorities maintain that the law of pursuit constitutes an obligation binding upon Jew and gentile alike.
  It may be inferred from Rambam's ruling, Hilkhot Melakhim 9:4, that a Noachide may execute a pursuer in order to preserve the victim. Jewish law specifies that if it is possible to preserve the life of the intended victim by merely maiming the pursuer it is forbidden to take the life of the latter. However, should a Jew take the life of the pursuer when, in fact, it is not absolutely necessary to do so, Rambam, Hilkhot Rozeaḥ 1:13, rules that he is culpable only at the hands of Heaven but is not to be executed by a human court. In Hilkhot Melakhim 9:4, Rambam makes a distinction between a Jew and a Noachide with regard to this provision and rules that a Noachide who might have preserved the victim by merely maiming the aggressor is to be put to death for having taken a human life. The clear inference of this statement is that when it is necessary to take the life of the pursuer in order to preserve the victim, it is permissible, and perhaps even obligatory, for a Noachide to do so.14<i class="footnote">See, however, R. Yehudah Rosenbaum, <i>Teshuvot ben Yehudah</i>, no. 21, cited by <i>Sedei Ḥemed, Klalim, ma‘arekhet ha-gimel</i>, no. 44, who maintains that the “law of the pursuer” does not apply to Noachides. <i>Teshuvot Ben Yehudah</i> asserts that Rambam means to imply that only the pursued Noachide victim may kill his aggressor but that, under the Noachide Code, a third party has no right to intervene.</i>
  The "law of pursuit" is certainly no less applicable when it is an entire community or nation, rather than an individual, which is pursued. Thus, military action is certainly justifiable when undertaken either in self-defense or on behalf of a victim of aggression.
  II
  More fundamental is the question of whether or not there exists a general exclusion to the prohibition against homicide which justifies the taking of human life under conditions of war. Insofar as the halakhah applicable to Jews is concerned there are obviously conditions, limited though they may be, under which this is the case. The various categories of obligatory war (<i>milḥemet mizvah</i>) and discretionary war (<i>milḥemet reshut</i>) encompass situations in which there exists no immediate danger to the warring party. War is nevertheless permissible under at least certain restricted conditions even though the taking of human life is inevitable. These categories are, however, limited to Jews. The war against Amalek and war for the conquest of <i>Erez Yisra'el</i> are wars which only Jews may undertake. A <i>milḥemet reshut</i> or discretionary war may be undertaken only upon the initiative of the monarch of the Jewish commonwealth with the approval of the Sanhedrin and the <i>urim ve-tumim</i>. No analogous provision is found in Noachide law. It is therefore not surprising that virtually no discussion of whether or not a Noachide may legitimately engage in warfare is to be found in the writings of early authorities.
  One latter-day authority does find grounds upon which to rule that non-Jews who engage in war are not guilty of murder. R. Naphtali Zevi Yehudah Berlin, in his commentary on the Pentateuch, <i>Ha'amek Davar</i>, Genesis 9:5, finds dispensation for warfare in the very verse which prohibits homicide to the Sons of Noah: "And surely your blood of your lives will I require … and at the hand of man, at the hand of every man's brother, will I require the life of man." The phrase "at the hand of every man's brother" appears to be entirely redundant since it adds nothing to the preceding phrase "at the hand of man." <i>Ha'amek Davar</i> understands this phrase as a limiting clause: "When is man punished? [If he commits homicide] when it is proper to behave in a brotherly manner." However, in time of war when animosity reigns among nations the taking of life in the course of military activity is not punishable. Again, in <i>Ha'amek Davar</i>, Deuteronomy 20:8, this authority states that "even" a Jewish monarch may engage in battle, thereby implying that gentiles are certainly not prohibited from doing so. Earlier, Maharal of Prague, in his commentary on the Bible, <i>Gur Aryeh, Parshat Va-Yishlaḥ</i>, speaking of the action taken by the sons of Jacob against the inhabitants of Shechem, states that the family of Jacob constituted, in effect, a sovereign people and were permitted to do battle against another nation since war is not forbidden under the Noachide Code. This position is, however, contradicted by a number of other authorities. R. Moses Sofer, <i>Teshuvot Hatam Sofer, Yoreh De'ah</i>, no. 19, declares wars of aggression to be forbidden to Noachides under all circumstances. In support of his position, <i>Hatam Sofer</i> cites the discussion found in <i>Sanhedrin</i> 59a. The Gemara declares that non-Jews do not enjoy legal prerogatives of conquest (<i>lav benei kibush ninahu</i>). <i>Hatam Sofer</i> demonstrates that the Gemara, <i>Gittin</i> 38a, does indeed affirm that non-Jews may acquire title to lands captured in wars by virtue of conquest. The phrase <i>"lav benei kibush"</i> must then be understood, argues <i>Hatam Sofer</i>, as meaning that non-Jews have no right to engage in war for purposes of conquest even though <i>post factum</i> they may acquire title in this manner. The identical argument is advanced by R. Abraham Dov Ber Kahane, <i>Dvar Avraham</i>, I, no. 11 and by R. Menachem Ziemba, <i>Zera Avraham</i>, no. 24. These authorities are in agreement with <i>Hatam Sofer's</i> view that non-Jews may not engage in a war of aggression under any circumstances.
  III
  Jewish participation in a war between non-Jews is a complex problem. According to the authorities who maintain that Noachides are forbidden to wage wars of aggression it would follow that Jews are forbidden to participate in such wars. To aid and abet a non-Jew in commission of a transgression of the Noachide Code is a violation of the prohibition "Thou shalt not place a stumbling block before the blind" (Leviticus 19:14). Moreover, it is clear that if the war is illicit for non-Jewish combatants there is no operative principle which conveys upon Jews the right to engage in battle. It is perhaps for this reason that <i>Tosafot, Avodah Zarah</i> 18b, cites the opinion of Rabbenu Elchanan who rules that Jews may not participate in such wars.
  R. Ze'ev Wolf Leiter, <i>Teshuvot Bet David</i>, no. 71, forbids voluntary enlistment in time of war because of the danger involved and describes the death of a soldier who does enlist in the armed forces as tantamount to suicide.15<i class="footnote">R. Meir Eisenstadt, <i>Teshuvot Imrei Esh, Yoreh De‘ah</i>, no. 52, surprisingly permits voluntary enlistment despite the danger involved.</i> Rabbi Leiter also decries this practice because of the possibility that the enlistee will take the lives of Jewish soldiers in the "enemy" army.16<i class="footnote">Rabbi Leiter also cites a narrative recorded by Josephus indicating that the inhabitants of Scythopolis forced the Jews that were among them to bear arms against their fellow Jews in violation of Jewish law. See <i>The Life of Flavius Josephus</i>, sec. 6. See also <i>Or Zaru‘a, Avodah Zarah</i>, chap. 1, no. 132.</i> <i>Teshuvot Hatam Sofer</i>, VI, no. 29, although also decrying voluntary enlistment, permits a conscript to hire a Jewish substitute. <i>Hatam Sofer</i> forbids enlistment because of lack of kosher food in the armed forces and the necessity for violation of <i>Shabbat</i> restrictions, but fails to mention the intrinsic prohibition against military aggression which he posits in the earlier cited responsum. This consideration may have been omitted because <i>Hatam Sofer</i> certainly intends his criticism to encompass peacetime enlistment and enlistment in armies engaged in wars of defense permitted to non-Jews. <i>Hatam Sofer</i> permits the hiring of a substitute only because the person hired would readily find others prepared to engage him as a mercenary and hence would in any event violate dietary and Sabbath restrictions.17<i class="footnote">Cf., however, <i>Mishneh le-Melekh, Hilkhot Malveh ve-Loveh</i> 4:2. It is of interest to note that in the same responsum <i>Ḥatam Sofer</i>, citing <i>Baba Batra</i> 8a, applauds the exemption of Yeshiva students from the draft. See also <i>Teshuvot Imrei Esh</i>, no. 52, who rules that “students of Torah” are exempt from conscription.</i>
  Of particular import is the statement of <i>Mishnah Berurah</i> 329:17, who rules that Jews must allow themselves to be conscripted in accordance with the "law of the land."18<i class="footnote">Cf., R. Samuel Turk, <i>Pri Malkah</i>, no. 64 and the response of R. Menasheh Klein, op. cit., no. 65.</i> The reason advanced is particularly noteworthy, viz., that failure to do so will enrage the citizenry and may result in loss of Jewish life. It is precisely this reason which is given by Rema, Oraḥ Hayyim 334:25, in permitting a Jew to extinguish a fire on <i>Shabbat</i> even though the fire poses no danger to life. <i>Mishnah Berurah</i> does not at all discuss the legitimacy of war on the part of non-Jews but permits Jews to participate simply as a matter of <i>pikuaḥ nefesh</i>.
  Rabbi Zevin also cites the verses in Obadiah 1:11-13 addressed to Edom:
  In the day that thou didst stand aloof,
  In the day that strangers carried away his substance,
  And foreigners entered into his gates
  And cast lots upon Jerusalem,
  Even thou wast as one of them
  But thou shouldst not have gazed on the day of thy brother,
  In the day of his disaster …
  Yea, thou shouldst not have gazed on their affliction
  In the day of their calamity.
  The prophet chastizes Edom for standing by silently while aggression is committed against Israel. The implication, argues Rabbi Zevin, is that Noachides have an obligation to do battle against an aggressor.
  
  Part II
  
  Prelude
  
  <i>"Now these are the ordinances which you shall set before them." It should not enter your mind to say "I shall teach them a section of Torah or a halakhah twice or thrice … but I shall not trouble myself to cause them to understand the reasons for the matter and its explanation…."</i>
  RASHI, EXODUS 21:1
  
  Chapter VIII The Sanctity of the Liberated Territories
  
  <i>Your ancestors inherited the land of seven nations but you will one day inherit the land of ten nations</i>.
  PALESTINIAN TALMUD,SHEVI'IT 5:1 and KIDDUSHIN 1:8
  Judaism teaches that the historic Land of Israel, in its entirety, is endowed for eternity with a unique sanctity, <i>kedushat Erez Yisra'el</i>. Jerusalem and the West Bank are, of course, integral parts of the Land of Israel. These areas were encompassed within the historic borders of <i>Erez Yisra'el</i> during both the First and Second Commonwealths. The sanctity of these geographical areas is eternal.
  The Six-Day War resulted in an expansion of the borders of the State of Israel. The newly-acquired territories include not only Judea and Samaria but also other areas whose status is far less clear. This has given rise to a number of halakhic questions all of which are predicated upon the central issue of whether or not the liberated territories share in <i>kedushat Erez Yisra'el</i>, the intrinsic sanctity of the Land of Israel. The resolution of this issue in the affirmative or in the negative will determine the answers to be given to the following questions:
  1. According to Ramban and other authorities who maintain that, even subsequent to the destruction of the Temple, residence in the Land of Israel constitutes the fulfillment of a biblical commandment, is the commandment fulfilled by one who dwells in the liberated territories?
  2. The Gemara, <i>Ketubot</i> 110b, teaches that if either a husband or wife desires to emigrate to <i>Erez Yisra'el</i> the other is obliged to acquiesce. Failure to do so is grounds for divorce. Can one marriage partner desirous of settling in one of the newly-conquered territories compel the other to do so as well?
  3. The sale to a non-Jew of real estate located within the boundaries of <i>Erez Yisra'el</i> constitutes a biblical transgression. May real estate in any of these territories be sold to non-Jews?
  4. Are the "laws contingent upon the Land," e.g., <i>terumah, ma'asrot</i> and observance of the sabbatical year, applicable to any or all of these territories?
  5. An inhabitant of <i>Erez Yisra'el</i> is forbidden to leave the Holy Land except for a limited number of specific purposes, e.g., the study of Torah, or marriage, and even then he may do so only temporarily.1<i class="footnote">See Rambam, Hilkhot Melakhim 5:9.</i> May a resident of Israel exit from areas acknowledged to be part of <i>Erez Yisra'el</i> proper in order to enter any or all of the liberated territories?
  A number of articles have been published recently which address themselves to the basic issue, i.e., the intrinsic sanctity of the conquered territories. The first, by Rabbi Judah Gershuni, appeared in <i>Or ha-Mizraḥ</i>, Nisan-Tammuz 5733, a special commemorative issue marking the twenty-fifth anniversary of the founding of the State of Israel. A different version of this article was published in the 5733 issue of <i>Torah she-be-'al Peh</i>, which also contains a contribution by Rabbi Shiloh Raphael on the same topic. The subject is again discussed by Rabbi Aaron Soloveichik in a very incisive article which first appeared in the 5734 issue of <i>Torah she-be-'al Peh</i> and was subsequently reprinted in three parts in the Shevat, Adar and Nisan 5735 issues of <i>Ha-Pardes</i>. The topic was discussed earlier by Rabbi Eliezer Waldenberg in a treatise published in <i>Kerem Ẓion ha-Shalem, Ozar ha-Terumot</i> (Jerusalem, 5728), edited by Rabbi Yitzchak Rosenthal. An expanded version of this material is included in Rabbi Waldenberg's <i>Ẓiz Eli'ezer</i>, X, no. 1.2<i class="footnote">See also R. Shlomoh Goren, <i>Torat ha-Mo‘adim</i> (Tel Aviv, 5724), pp. 614-623.</i>
  The proliferation of material dealing with the status of the liberated territories testifies to the importance attached to this question as well as to the complexity of the issues involved. The question is one which does not have a simple answer. In order to arrive at a halakhic determination it is necessary to identify and analyze a number of complex factors in light of the often conflicting views of the various early authorities who have formulated definitive positions regarding criteria of <i>kedushat Erez Yisra'el</i>. Few subjects evoke the fervor and enthusiasm of Jews the world over as intensely as does the Land of Israel. Despite the technical complexity of the subject matter, the interest generated by this topic warrants a somewhat detailed analysis.
  I. The "First" and "Second" Sanctifications
  Insofar as the question of the sanctity of the Land is concerned, the territory within the present enlarged boundaries of the State of Israel may be classified in terms of three distinct categories:
  1. Territories settled subsequent to the conquest of the land of Canaan by those who "ascended from Egypt" and resettled by those who returned from the Babylonian exile.
  2. Territories now under the sovereignty of the State of Israel which were originally conquered by "those who ascended from Egypt" but were not resettled subsequent to the Babylonian exile.
  3. Territories now within the borders of the State of Israel but which were neither conquered by those who ascended from Egypt nor settled by those who returned from the Babylonian captivity.
  All territories conquered by those who ascended from Egypt and settled by returnees from Babylonia share eternally in the sanctity of <i>Erez Yisra'el</i> regardless of whether or not they are incorporated within the confines of an autonomous Jewish state. This is so because, while the original sanctification of the land in the time of Joshua lapsed with the expulsion of the Jews following the destruction of the First Temple, the second sanctification, which occurred upon the return from the Babylonian exile, was efficacious for posterity. Thus, the newly-liberated areas of Judea and Samaria are integral parts of the Holy Land by virtue of Ezra's sanctification and are endowed with the self-same sanctity as all other areas within the confines of the historic boundaries of <i>Erez Yisra'el</i>.
  II. Temporary vs. Permanent Sanctification
  The halakhic distinction between the original sanctification of the Land of Israel in the days of Joshua and his successors and its resanctification by Ezra following the return from the Babylonian captivity is somewhat extrinsic to the basic issues of this discussion. However, since much of the subject-matter is predicated upon the distinction between these two acts of sanctification, some explanation of the underlying concepts is in order. The talmudic principle is <i>"kedushah rishonah kidshah le-sha'atah ve-lo kidshah le-'atid lavo"</i>—the first sanctification [in the days of Joshua] was only for "its time," but not for eternity. Joshua's sanctification was temporary in nature and was abrogated upon the destruction of the first Temple and the attendant exile from the land. In contradistinction, Ezra's sanctification is depicted as "<i>kidshah le-sha'atah ve-kidshah le-'atid lavo"</i>—sanctification not only for "its time" but also for eternity. This sanctification of the land remained in effect not only during the period of the Second Commonwealth but is eternal in nature and can never be abrogated.
  A number of reasons have been advanced by a variety of scholars in explanation of the disparity between the sanctification by Joshua which was temporary in nature and that of Ezra which was permanent.
  1. Rambam, <i>Hilkhot Bet ha-Beḥirah</i> 6:16 and <i>Hilkhot Terumot</i> 1:5, explains that since the original Jewish settlers of the Land of Israel in the days of Joshua sanctified the land by the very act of conquest, their sanctification remained in effect only until the land was lost through conquest. Ezra's sanctification was not effected by an act of conquest but simply by virtue of the returnees being seized of the land (<i>ḥazakah</i>) and hence did not lapse.
  This explanation, however, presents an obvious conceptual problem. The original settlement as a result of conquest also resulted in the inhabitants being seized of the land. Since the original settlement involved <i>ḥazakah</i> as well, why did it lapse? <i>Kesef Mishneh, Hilkhot Bet ha-Beḥirah</i> 1:16, raises the question and leaves it unanswered. The question may perhaps be resolved on the basis of the Palestinian Talmud, <i>Shevi'it</i> 6:1. This source indicates that the mode of sanctification utilized by Ezra, viz., <i>ḥazakah</i>, could not have been employed in the original settlement. Citing the verse, "And the Lord your God will bring you into the land … and He will do good unto you and make you more than your fathers" (Deuteronomy 30:5) the Palestinian Talmud states that, in contradistinction to the earlier sanctification, Ezra sanctified the land even though it did not achieve political autonomy but remained a vassal state owing fealty to the kings of Persia and Medea. Since this sanctification was a divine beneficence, and not contingent upon conquest of territory, it did not lapse when the land was taken from Israel.
  2. <i>Hayyim Sha'al</i>, II, no. 39, and <i>Ẓlaḥ, Berakhot</i> 4a,3<i class="footnote">See also R. Iser Zalman Meltzer, <i>Even he-Azel, Hilkhot Zekhiyah u-Mattanah</i> 1:1.</i> resolve this question by stating that sanctification is contingent upon intention. Sanctification of the Land is effected by virtue of acquiring title. Accordingly, such sanctification remained conditional upon retention of title. The land was originally acquired by means of conquest; there was no intent at that time to acquire title by any other means. This is significant because acquisition of title (<i>kinyan</i>) is predicated upon intent (<i>kavanah</i>). Title acquired through conquest is lost through conquest, and hence sanctification lapsed with the loss of the land. Although title, and hence sanctification, acquired by means of <i>ḥazakah</i> does not lapse in this manner, there was no intent in the time of Joshua to acquire title by means of <i>ḥazakah</i>. In the absence of intent, the act of <i>ḥazakah</i> is of no legal significance. In the time of Ezra there was intent to acquire title by means of <i>ḥazakah</i>. Title to <i>Erez Yisra'el</i> acquired in this manner does not lapse and, accordingly, Ezra's sanctification was permanent in nature.
  In a somewhat different manner, <i>Mikdash David</i>, III, no. 55, p. 4a, explains that sanctification must necessarily take place at the moment of acquisition. In the time of Joshua, when conquest was necessary, acquisition took place at the time of conquest. At that moment there was, as yet, no act of <i>ḥazakah</i>. In the time of Ezra, when no conquest was necessary, acquisition and immediate sanctification were achieved by means of <i>ḥazakah</i>. Sanctification achieved by means of conquest lapses through conquest; sanctification achieved through <i>ḥazakah</i> is permanent.
  4. Radbaz, <i>Hilkhot Terumot</i> 1:5, also resolves the question by explaining that sanctification by means of conquest may be nullified. Radbaz, however, explains that the sanctification which took place in the time of Ezra was different in nature. The sanctification of Ezra, declares Radbaz, was a "verbal sanctification" and a verbal sanctification cannot be abrogated. This form of sanctification was absent in the time of Joshua.
  5. <i>Tosefet Yom Tov</i>, in his commentary on <i>Eduyot</i> 8:6, followed by <i>Hatam Sofer, Yoreh De'ah</i>, no. 233,4<i class="footnote">See also <i>Melo ha-Ro‘im</i>, s.v. <i>kedushah rishonah</i>, sec. 9. Cf., <i>Dvar Avraham</i>, I, no. 10, who rejects this explanation.</i> explains that conquest can be nullified since it is effected by force without the consent of the previous proprietors. The <i>ḥazakah</i> of Ezra cannot be nullified since it was carried out with the consent of the rulers of Persia. Divine consent to the original conquest is not sufficient to convey title in perpetuity since Israel's dominion was destined to be temporary in nature. The destruction of the Temple and accompanying desolation of the Land were foretold by the prophets. Accordingly, as was the divine intention, the original sanctification which was achieved by means of conquest was, in turn, nullified by conquest. There is, however, no explicit prophecy with regard to the destruction of the Second Commonwealth. The conquering nations were not granted explicit permission to dispossess Israel from the land. Hence, the second sanctification was permanent in nature.
  6. <i>Mekom Shmuel</i>, no. 37, offers a most intriguing explanation. The Land of Israel was given to the people of Israel on the express condition that they observe the divine commandments. This stipulation is implicit in the words of the Psalmist, "And He gave them the lands of the nations and the labor of the people did they inherit. That they might keep His statutes and observe His laws" (Psalms 105:44-45). The first Temple was destroyed because this condition was not fulfilled. The Gemara, <i>Yoma</i> 9b, states definitively that the first Temple was destroyed because Israel was guilty of idolatry, sexual immorality and acts of murder. Idolatry, in particular, is tantamount to renunciation of the Torah in its entirety. Since the people of Israel failed to fulfill the condition imposed upon them, the gift of <i>Erez Yisra'el</i> was annulled and the sanctity of the land abrogated. The second Temple, however, was destroyed not because Jews failed to observe basic tenets of Judaism, but because baseless enmity (<i>sin'at ḥinam</i>) was rampant among them. Although this was a grave transgression, nevertheless, at that time, Jews basically did "observe His laws." Thus, Jews did not fail to observe the condition imposed upon them and hence did not lose title to <i>Erez Yisra'el</i>. Thus, in a sense, the Land of Israel was "unjustly" taken from the people of Israel. It is for this reason, argues <i>Mekom Shmuel</i>, that Jews still retain title to the Land of Israel and that, as a result, its intrinsic sanctity has not lapsed.
  Whatever the ultimate rationale may be,5<i class="footnote">See also explanations advanced by <i>She’ilat David</i>, I, commentary on <i>Shevi‘it; Dvar Avraham</i>, I, no. 10; Even <i>he-Azel, Hilkhot Bet ha-Beḥirah</i> 6:16; <i>Yeri‘ot Shlomoh</i>, p. 94; <i>Bet Midrash</i> (Memorial Volume in Tribute to R. Chaim Ozer Grodzinski), p. 136; and R. Shlomoh Goren, <i>Torat ha-Mo‘adim</i> pp. 609-611.</i> the qualitative distinction between the first and second sanctifications is clear. The territories sanctified by Ezra are endowed with eternal sanctity while those captured by Joshua but not resettled in the time of Ezra are not endowed with the self-same sanctity.
  III. Joshua's Sanctification
  The status of the areas conquered during the time of Joshua, but not resettled following the Babylonian exile, is a matter of controversy. Numerous authorities maintain that even these territories retain some form of sanctity. Rambam, <i>Hilkhot Terumot</i> 1:26, rules that insofar as <i>terumot</i> and <i>ma'asrot</i> are concerned, the sanctity of these territories lapsed with the Babylonian expulsion. Yet, with regard to other regulations, Rambam indicates that such areas are deemed to be part of <i>Erez Yisra'el</i>. Although the biblical form of ordination required for serving as a member of a <i>Bet Din</i> empowered to impose fines and corporal punishment can be conferred only in <i>Erez Yisra'el</i>, Rambam, <i>Hilkhot Sanhedrin</i> 4:6, states that all territories conquered by those who ascended from Egypt are considered to be part of <i>Erez Yisra'el</i> insofar as this stipulation is concerned.
  Radbaz, in his commentary <i>ad locum</i>, citing <i>Kaftor va-Feraḥ</i> 10:38, indicates that such areas are also to be deemed part of <i>Erez Yisra'el</i> insofar as fulfillment of the commandment of dwelling in the Land of Israel is concerned. This is also the opinion of Ramban (addendum to his commentary on the Talmud, <i>Gittin</i> 2a), <i>Ba'al ha-Terumot</i> (cited in R. Yechiel Michal Tucatzinsky, <i>Sefer Erez Yisra'el</i>, I, 26:7b), <i>Yeshu'ot Malko</i> (<i>Yoreh De'ah</i>, no. 67), <i>Hazon Ish</i> (<i>Shevi'it</i> 3:19 and <i>Hilkhot Avodat Kokhavim</i> 65:1) and Rabbi A. I. Kook (<i>Shabbat ha-Arez</i>, Introduction, sec. 16). Thus, these authorities maintain that, although produce grown in these areas is exempt from the "commandments contingent upon the Land," nevertheless, these territories do enjoy the status of <i>Erez Yisra'el</i> proper and this sanctified status is manifest in other areas of Jewish law. <i>Tosafot, Gittin</i> 2a, however, is of the opinion that areas not resettled by those who ascended from Babylonia are endowed with no sanctity whatsoever and hence one who dwells in such territories does not fulfill a <i>mizvah</i>.6<i class="footnote">See also <i>Avnei Nezer, Yoreh De‘ah</i>, II, no. 454, secs. 32-33 and 62.</i>
  The position of <i>Maharit</i> with regard to the status of these areas is most interesting. Agreeing with <i>Tosafot, Teshuvot Maharit</i>, I, no. 47, rules that those territories cannot be regarded as part of <i>Erez Yisra'el</i> for purposes of fulfillment of the commandment of dwelling in the Land of Israel. Yet, <i>Maharit</i> concedes that such areas must be considered to be part of the historic homeland of the people of Israel even though they were not resettled in the days of Ezra. He points out that the patriarchs sought a burial place in Israel even before it became sanctified as the homeland of the Jewish people.
  IV. Communal vs. Private Conquest
  It is also possible for areas which were neither conquered nor settled in the time of Ezra, or even in the time of Joshua, to become sanctified as integral parts of the Land of Israel. Commenting on the verse, "Every place where your foot shall tread shall belong to you" (Deuteronomy 11:24), <i>Sifre, Ekev</i> 51, indicates that the Torah here declares that all conquered territories, even those lying outside the biblical boundaries of <i>Erez Yisra'el</i>, are endowed with the sanctity of the Holy Land. Thus, Rambam, Hilkhot Melakhim 5:6, writes, "All territories which Israel conquers by means of a king upon the instruction of the <i>Bet Din</i> … are for all purposes as the Land of Israel which was conquered by Joshua."7<i class="footnote">See, however, Radbaz, Hilkhot Terumot 1:3.</i> Rambam, it should be noted, stipulates that a <i>Bet Din</i> (i.e., the Sanhedrin) is required in order to effect the sanctification of territory outside the boundaries of <i>Erez Yisra'el</i>—a factor which was clearly absent in all conquests of the modern era.
  Rabbi Soloveichik addresses himself to the question of whether or not conquest by the armed forces of the State of Israel confers sanctification upon such territories. It is axiomatic that only territory acquired by "communal" conquest may be endowed with sanctity; territory conquered by an individual or by a group of individuals does not acquire sanctity. Accordingly, the crucial problem is whether or not the conquest of the territories in question constitutes a "communal" conquest. If these conquests are deemed to be "communal" conquests, it follows that sanctification did occur; if, however, the conquests are not deemed to have been communal in nature, the status of those territories is similar to that of "Syria," the territory conquered by King David, which was not deemed to have been sanctified because it was an "individual" or "private" conquest.
  Rashi, <i>Gittin</i> 8b, enumerates the criteria of "communal conquest" as distinct from "private conquest" and indicates that David's conquest was private in nature because David's conquest was (1) for his personal benefit, (2) carried out without prior consultation of the <i>urim ve-tumim</i>, and (3) did not involve 600,000 people. In contradistinction, Joshua's conquest was for the benefit of the entire people, was carried out only after consultation of the <i>urim ve-tumim</i>, and involved all of Israel, i.e., a community of 600,000 warriors.
  <i>Tosafot, Gittin</i> 8b and <i>Avodah Zarah</i> 21a, presents a different criterion for distinguishing between "communal" and "private" conquests. David's conquest was "private" because it was carried out prior to the conquest of <i>Erez Yisra'el</i> in its entirety. Since, at the time of David's war against Syria, Jerusalem was still in the hands of the Jebusites the conquest of the Land of Israel proper was not yet complete and, hence, no other conquered territory could become sanctified.
  Rambam espouses a third position in his enumeration of the conditions to be fulfilled in order that a conquest be deemed "communal" in nature. In <i>Hilkhot Terumot</i> 1:2, Rambam states that a conquest is "communal" in nature only if carried out by a king or a prophet with the approval of the majority of Israel. In Hilkhot Melakhim 5:6, Rambam speaks of the approval of the Sanhedrin rather than of the approval of the majority of Israel. Presumably, Rambam's position is that the Sanhedrin serves as the representative of the people and that approval of the Sanhedrin is tantamount to approval of the entire populace.8<i class="footnote">Cf., the comments of the Brisker Rav, R. Yitzchak Ze’ev Soloveitchik, as cited by R. Judah Gershuni, <i>Mishpat ha-Melukhah, Hilkhot Melakhim</i> 1:3. See also <i>Contemporary Halakhic Problems</i>, I, 13.</i>
  In <i>Hilkhot Terumot</i>, Rambam does not mention the need for consultation of the <i>urim ve-tumim</i>. However, in his <i>Sefer ha-mizvot, shoresh</i> 14, Rambam states that a communal conquest requires a king, Sanhedrin and <i>urim ve-tumim</i>. Rabbi Soloveichik points out that this discrepancy can be resolved if it is understood that the <i>urim ve-tumim</i> is required not for the act of conquest or for purposes of conferring sanctity <i>per se</i> but, rather, that, as a matter of course, the king could not act without consulting the <i>urim ve-tumim</i>.9<i class="footnote">See Rambam, <i>Hilkhot Kelei ha-Mikdash</i> 10:12.</i> Thus, the requirement for prior consultation of the <i>urim ve-tumim</i> is not a necessary condition of sanctification but a limitation upon legitimate exercise of the royal prerogative. <i>Sefer mizvot Gadol</i> modifies the requirement that the conquest must be carried out by a king and states that a communal conquest undertaken not only by a king but even by a judge (<i>shofet</i>) confers sanctity. In <i>Hilkhot Terumot</i> 1:3, Rambam adds a condition identical to that recorded by <i>Tosafot</i>. Here, Rambam declares that conquest confers sanctity only if all of the Land of Israel proper has been conquered previously.
  On the basis of <i>Tosafot, Avodah Zarah</i> 21a, Rabbi Soloveichik argues that, in defining what constitutes a "private " rather than a "communal" conquest, <i>Tosafot</i>, in actuality, distinguishes between two geographic areas. There is an apparent discrepancy with regard to the boundaries of the Land of Israel as they are described in the Bible. Numbers 34:1-12 gives the borders in great detail, and includes the names of cities along the borders. Deuteronomy 11:24, employing much broader language, states that the boundaries shall extend "from the wilderness, and the Lebanon, from the river, the river Euphrates, even unto the hinder sea." The latter description quite obviously encompasses much more territory than is included in the boundaries described in Numbers. Rabbi Soloveichik indicates that the enhanced territories referred to in Deuteronomy were merely promised to Abraham, whereas the more limited area described in Numbers was actually "given as a gift" to Abraham. It was only the latter territory which was actually conquered by "those who ascended from Egypt." Nevertheless, Ramban, in his commentary on Deuteronomy 11:24, writes that the people of Israel were commanded to conquer even the additional territory lying outside the borders described in Numbers but encompassed within the boundaries indicated in Deuteronomy. Syria—the area captured by King David—clearly lies within those boundaries. However, since <i>Tosafot</i> considers Syria to be a "private" conquest, because it was conquered before the conquest of the Land of Israel in its entirety, a new conclusion emerges. According to this reasoning it would appear that the <i>mizvah</i> of conquering <i>Erez Yisra'el</i> requires that the territory described in Numbers be conquered before any attempt is made to take areas within the larger boundaries described in Deuteronomy.
  In light of this analysis, Rabbi Soloveichik argues that <i>Tosafot'</i>s position is that once <i>Erez Yisra'el</i> proper is captured in its entirety any individual may conquer any area within the more inclusive boundaries delineated in Deuteronomy and that such territory automatically becomes endowed with the sanctity of <i>Erez Yisra'el</i>. Neither a king, <i>urim ve-tumim</i>, Sanhedrin, nor 600,000 people are necessary since such territories are within the confines of the area divinely promised to Abraham. Beyond those boundaries, however, even <i>Tosafot</i> agrees that any additional conquest is endowed with the sanctity of <i>Erez Yisra'el</i> only if all the enumerated conditions are fulfilled.
  This view is, however, contradicted by another authority. Rabbenu Ya'akov, author of the <i>Tur Shulḥan Arukh</i>, writes in his <i>Hilkhot Erez Yisra'el</i> that, in any period of history, any place conquered by those who ascended from Egypt which is "set aside for Jewish habitations and the fields are set aside for Israel and there is no fear of the gentiles upon them that they may drive them therefrom, this is its sanctification and <i>ma'aser</i> is biblically obligated." Thus, the author of the <i>Tur</i> maintains that any area settled by those who ascended from Egypt becomes resanctified by virtue of Jewish settlement. However, <i>Tur</i> maintains that even after settlement of <i>Erez Yisra'el</i> by those who ascended from Egypt, "private" conquests of an area within the borders described in Deuteronomy but not conquered by those who ascended from Egypt, does not constitute sanctification; <i>Tosafot</i>, in disagreeing, maintains that once <i>Erez Yisra'el</i> proper is conquered, conquest by any individual of territory within the borders described in Deuteronomy confers sanctity as an integral part of the Land of Israel. Rabbi Soloveichik points out that all the territories occupied as a result of the Six-Day War are within the confines of the borders promised to Abraham as delineated in Deuteronomy. Hence, argues Rabbi Soloveichik, all of the occupied territories, including those areas not conquered by Joshua, are, according to the position of <i>Tosafot</i>, endowed with the sancity of the Land of Israel; whereas, according to the authorities who disagree with <i>Tosafot</i>, areas which were previously never part of the territory of a Jewish commonwealth are not endowed with sanctity.
  With regard to the status of those territories now under the sovereignty of the State of Israel which were originally conquered by those who ascended from Egypt but were not resettled by those who returned from Babylonia, Rabbi Soloveichik is of the opinion that, according to Rashi, who requires 600,000 people and <i>urim ve-tumim</i>, no sanctification has occurred and hence there exists no obligation with regard to <i>terumot</i> and <i>ma'asrot</i>. According to Rambam the necessary conditions for sanctification include either a king or a prophet as well as the approval of either a majority of Israel or of the Sanhedrin. Both Rambam, <i>Hilkhot Terumot</i> 1:2, and Rashi, <i>Gittin</i> 8a, state that the conquest must be carried out "with the knowledge [in the sense of acknowledgment or agreement] of the majority of Israel." Since these conditions have not been fulfilled, argues Rabbi Soloveichik, there exists no sanctity according to Rambam. It is true that, according to <i>Sefer mizvot Gadol</i>, an annointed monarch is not required and sanctification can be achieved if the conquest is carried out under the leadership of a judge. It may well be argued that the government of Israel is equivalent in status to a "judge." Nevertheless, even according to <i>Sefer mizvot Gadol</i>, the prior approval of a majority of Israel is required. This, argues Rabbi Soloveichik, was absent in present-day conquests. Since the majority of the members of the community of Israel do not reside in the State of Israel, it can hardly be insisted that the Six-Day War was waged with their prior agreement.
  In opposition to this view, both Rabbi Raphael and Rabbi Gershuni argue that neither the absence of a king nor of a Sanhedrin constitutes an impediment to sanctification. They assert that Rambam's reference to a "king" does not connote exclusively a monarch enjoying royal prerogatives, but includes any official or any governmental body in whom ruling authority is vested. The king, in waging war, merely serves as an agent of the nation. In the absence of a monarchy, authority for the declaration of war is vested in the established state authority. Earlier, Rabbi Shlomoh Yosef Zevin, <i>Torah she-be-'al Peh</i> (5731), XIII, had pointed out that this contention is borne out by the terminology employed by Ramban in his addendum to Rambam's <i>Sefer ha-mizvot, lo ta'aseh</i>, no. 17. In discussing declaration of war, Ramban states that this is the prerogative of "the king, the judge or whoever exercises authority over the people."10<i class="footnote">This position was first formulated explicitly by Rabbi Abraham I. Kook, <i>Mishpat Kohen</i>, no. 144, sec. 15, and was endorsed by Rabbi Eliezer Waldenberg, <i>Hilkhot Medinah</i>, I, no. 3, chap. 5 and <i>Ẓiẓ Eli‘ezer</i>, X, no. 1, chap. 3, sec. 14, by Rabbi Shlomoh Goren, <i>Torat ha-Mo‘adim</i>, p. 623, and by Rabbi Benjamin Rabino-witz-Teumim, <i>Moriah</i>, Tevet 5735. Rabbi Waldenberg maintains that this is also the opinion of R. Ya‘akov Emden, <i>Mor u-Keẓi‘ah</i> 306. See below, chapter IX, n. 27 and <i>Contemporary Halakhic Problems</i>, I, 115-116.</i>
  Both Rabbi Raphael and Rabbi Gershuni assert that agreement of "the majority of Israel," as required by Rashi and Rambam, refers to Jews residing in the Land of Israel. Hence, in order for territorial acquisitions to become sanctified, approval of the military operation need be secured only from a majority of those Jews who reside in the State of Israel.11<i class="footnote">Cf., <i>Mishpat Kohen</i>, no. 143, p. 308, who makes a similar assertion in an entirely different context.</i>
  Rabbi Soloveichik disagrees with this position. It is his contention that, since the obligation with regard to conquering and settling the Land of Israel is incumbent upon all of the community of Israel, the agreement of "the majority of Israel" must refer to the entire community of Israel and not only to the residents of <i>Erez Yisra'el</i>. Rabbi Waldenberg, <i>Ẓiz Eli'ezer</i>, X, no. 1, secs. 9-12, argues that 600,000 Jews constitute an entire "community." Hence, following the settlement of 600,000 Jews in Israel, conquest of territory is not contingent upon the approval of Jews in the Diaspora.
  It should be noted that, according to one authority, the requirements of a king and a majority of Israel posited by Rashi do not apply to areas already conquered by those who ascended from Egypt. Mabit, <i>Kiryat Sefer, Hilkhot Terumot</i>, chap. 1, writes "A king or prophet and a majority of Israel are required … for the first conquest. But, for the second conquest, since the Land of Israel has already been sanctified even though [that sanctity] has been abrogated, a majority of Israel is not necessary….12<i class="footnote">This is also true for Rashash, <i>Eduyot</i> 8:6, whose position will be examined subsequently in more detail.</i> According to these authorities, newly-occupied territory lying within the area conquered by those who ascended from Egypt must be viewed as sanctified territory.
  Rabbi Raphael, however, states that, with the exception of Judea and Samaria, the newly-occupied territories do not lie within the area settled in the time of Ezra or even within the area captured by those who ascended from Egypt. Rabbi Raphael does not follow the view of Rabbi Soloveichik in positing different prerequisites for the sanctification of territory within the confines of the borders vouchsafed to Abraham. Therefore, he finds no grounds for assuming that any of these territories have become sanctified. However, settlements such as Metullah and the northern areas, which were incorporated within the boundaries of the State of Israel even before 1967, are located in an area conquered by those who ascended from Egypt but not resettled by Ezra. According to Rabbi Raphael, insofar as the <i>mizvah</i> of dwelling in the Land of Israel is concerned, the status of this area is affected by the controversy between <i>Tosafot</i> and Rambam. According to Rambam (and other authorities cited earlier) those areas are part of <i>Erez Yisra'el</i> for all purposes save for the obligation with regard to <i>terumot</i> and <i>ma'asrot;</i> for <i>Tosafot</i> they are part of the Diaspora.
  V. Gaza
  Rabbi Gershuni makes an interesting observation with regard to the status of Gaza. <i>Teshuvot Radbaz</i>, V, no. 1105, asserts that Gaza was definitely conquered by those who ascended from Egypt but expresses uncertainty with regard to its resettlement in the days of Ezra. However, this view is contradicted by R. Isaac Trani, <i>Teshuvot Maharit</i>, 1, no. 47. The latter responsum is in answer to a question posed by a man who had married in Egypt and wished his wife to accompany him in making their home in Gaza. Maharit was asked whether the wife could be compelled to do so since a wife must join a husband in settling in <i>Erez Yisra'el</i> and vice versa. Essentially, the question was whether or not Gaza is considered to be part of the Land of Israel. Maharit's answer was in the negative. He maintained that Gaza was definitely not settled by the returnees from Babylonia and ruled that, even assuming that it had been conquered by those who ascended from Egypt, the wife could not be compelled to live there since "commandments contingent upon the land" are not observed in such areas.
  VI. The Golan
  There is also some controversy regarding the status of the Golan. Rabbi Raphael states that the Golan was among the territories conquered in the days of Joshua. <i>Tosafot, Yevamot</i> 16a, cites two opinions with regard to how much of this territory was settled by the Babylonian returnees. According to one opinion, only the northern section, i.e., the land of Bashan north of the river Yabok was settled; according to the second opinion, the entire area extending south to the river Arnon was settled. The latter opinion is also held by <i>Sefer mizvot Gadol</i>, 161; Mahari Kurkos, <i>Hilkhot Shmittah ve-Yovel</i> 4:28; and Radbaz, <i>Hilkhot Terumot</i> 1:2.13<i class="footnote">See also Parashat Derakhim, no. 5; <i>Yeshu‘ot Malko, Hilkhot Terumot</i> 1:2, and <i>Yoreh De‘ah</i>, no. 67; and <i>Ḥazon Ish, Shevi‘it</i> 3:25.</i> Rabbi Gershuni, in his <i>Torah she-be-'al Peh</i> article, cites the geographical descriptions of <i>Kaftor va-Feraḥ</i> and declares that, according to <i>Tosafot</i>, the cities of the Golan are included in the sanctified areas. However, in his article in <i>Or ha-Mizraḥ</i>, Rabbi Gershuni cites <i>Makkot</i> 9b in showing that the Golan is part of the territory of Transjordan and hence not sanctified insofar as <i>terumot</i> and <i>ma'asrot</i> are concerned. For other purposes, such as fulfillment of the commandment to dwell in the land, the earlier cited controversy between Rambam and <i>Tosafot</i> is germane.
  VII. Southern Territories
  Insofar as the Negev and the southern territories are concerned, the <i>Mishnah, Gittin</i> 2a, indicates that Ashkelon was the southern boundary of <i>Erez Yisra'el</i>. Rambam maintains that those who ascended from Egypt conquered no territory south of Ashkelon and that Ashkelon was always the southern boundary. However, most other authorities maintain that in the time of Joshua territories south of Ashkelon were also captured and that the Mishnah, in speaking of Ashkelon as the southern border, refers only to areas regained in the time of Ezra and gives the boundary which existed in the time of the Second Commonwealth. According to these authorities, at least some of the areas south of Ashkelon fall into the category of territory captured by those who ascended from Egypt but not retaken by the returnees from Babylonia. There is considerable evidence in support of this view. I Kings 8:65 speaks of the south of Israel as being populated by Jews "until the river of Egypt." <i>Targum Yonatan</i> (Genesis 15:18) translates the words <i>"nahar mizrayim"</i> as the "Nile of Egypt." Radbaz, <i>Hilkhot Terumot</i> 1:7, dismisses this view and declares the river to be Wa'ad al Arish. This is also the opinion of Sa'adia Ga'on.14<i class="footnote">See <i>Tevu’ot ha-Areẓ</i>, chap. 1, p. 27.</i> Sa'adia Ga'on states that <i>Ma'aleh Akrabim</i> of Numbers 34:4 is identical with the area known as Aqaba. I Kings 9:26 speaks of Solomon's dominion as extending to Eilat; II Kings 14:22 and II Chronicles 26:2 speak of the rebuilding of Eilat by Uzziah. It is, however, generally assumed that these territories were not resettled by those who returned with Ezra.
  However, in his article in <i>Or ha-Mizraḥ</i>, Rabbi Gershuni notes that both the Book of Maccabees and Josephus state that these territories were captured by both the Maccabees and by Herod. If this is the case, exclusion of these areas from the obligation of <i>terumot</i> and <i>ma'asrot</i> is puzzling. Rabbi Gershuni develops the thesis that only those areas settled by Ezra were permanently sanctified. Other areas settled at a later time do not share in this sanctity.15<i class="footnote">See also R. Ya‘akov Emden, <i>Mor u-Keẓi‘ah</i> 306.</i> The Palestinian Talmud, <i>Shevi'it</i> 6:1, cites the verse "… and He will do good unto you and make you more than your fathers" (Deuteronomy 30:5) and interprets it as referring specifically to Ezra's resettlement of the Land of Israel. The beneficence spoken of and described as greater than that bestowed upon earlier generations is understood by the Palestinian Talmud as a specific allusion to the permanent nature of Ezra's sanctification. According to Rabbi Gershuni, the sanctity with which the territories captured by the Maccabees and by Herod were endowed was different in nature from the sanctity of the areas resettled by Ezra. The latter enjoyed permanent sanctity by virtue of settlement. No conquest was necessary since the return and resettlement of the land was accomplished with the permission of the Persian rulers. The areas captured by the Maccabees, and by Herod, argues Rabbi Gershuni, enjoyed sanctity solely by virtue of conquest, as was the case in the time of Joshua. Therefore, the sanctity of those territories lapsed when they were subsequently recaptured, just as the sanctity of the areas captured by Joshua lapsed when those territories were conquered by gentile nations.
  This position is, however, antithetical to the opinion expressed by R. Shmuel Strashun (Rashash) in his commentary on <i>Eduyot</i> 8:6. This authority adopts the extreme position that whenever "with the permission of the king" a Jew purchases land within the territory conquered by those who ascended from Egypt, such land acquires the sanctity of <i>Erez Yisra'el</i>. His argument is that such an individual acquisition is similar in nature to that of Ezra. The <i>ḥazakah</i> which conferred sanctity in the time of Ezra was efficacious precisely because it was an act of settlement carried out with permission of the ruling authorities. For Rashash there is no distinction between an individual and a communal settlement with regard to the "second sanctification." It is thus clear that, according to Rashash, the beneficence which the Palestinian Talmud describes as having been conferred upon Ezra was extended to subsequent generations as well. This interpretation understands the Palestinian Talmud as teaching simply that authority for sanctification through <i>ḥazakah</i> was withheld prior to the time of Ezra.
  VIII. Further Arguments Negating Sanctity of Liberated Territories
  Both R. Soloveichik and R. Raphael consider a further argument against the thesis that the sanctity of the Holy Land devolves upon territories conquered in the Six-Day War. Rambam, Hilkhot Melakhim 5:6 and <i>Hilkhot Terumot</i> 1:3, stipulates that additional territories acquire the sanctity of <i>Erez Yisra'el</i> only if they are conquered subsequently to the conquest of territories contained within the biblically stipulated boundaries. <i>Sifre, Ekev</i> 51, indicates that it is for this reason that King David's conquest of Syria was deemed to be "private" and hence the territory of Syria did not become sanctified. An argument might, therefore, be advanced that Sinai and Gaza did not become sanctified in 1967 since they were taken before Jerusalem and other parts of Israel proper.
  However, the rationale underlying this provision is somewhat obscure. <i>Sifre</i> states that the sanctity of the Holy Land did not devolve upon Syria because, in failing first to conquer <i>Erez Yisra'el</i> in its entirety, David "did not act in accordance with the Torah." If so, non-sanctification of such territories results from the transgression involved. <i>Tosafot, Avodah Zarah</i> 21a, indicates that the crucial factor impeding sanctification of such territories is the prohibition against their conquest prior to the conquest of <i>Erez Yisra'el</i> proper in its entirety. Following this line of reasoning, Rabbi Soloveichik and Rabbi Raphael argue that, in the absence of any other impediment, territories conquered in a defensive war, which clearly involves no transgression, should be sanctified even if such territories are conquered before portions of the Land of Israel proper have been recaptured.
  Rambam, however, fails to record that nonsanctification of private conquests results from commission of a transgression. Indeed, Rambam, <i>Hilkhot Terumot</i> 1:3, states that the "private" conquest of Syria by King David was carried out with permission of the Sanhedrin. It is unthinkable that the Sanhedrin would sanction a forbidden course of action. In codifying this provision Rambam apparently bases himself directly upon the verse, "Every place where your foot shall tread, yours shall it be." As indicated by <i>Sifre</i>, this is a reference to territory lying outside the area delineated by the biblical boundaries extending "from the wilderness and the Lebanon, from the river, the river Euphrates, even unto the hinder sea." It is from this passage that <i>Sifre</i> derives the principle that territory lying outside the boundaries of the Holy Land may acquire the sanctity of <i>Erez Yisra'el</i>. Rambam apparently interprets this verse in a purely descriptive sense. The phrase "yours it shall be" is to be understood as meaning that the territory becomes endowed with the sanctity of <i>Erez Yisra'el</i> only if conquered subsequent to the territories specifically enumerated. 16<i class="footnote">See R. Shlomoh Zalman Auerbach, <i>Ma‘adanei Ereẓ, Terumot</i> 1:3.</i> Nevertheless, even according to this understanding of Rambam, argues Rabbi Raphael, the regulation established with regard to the order in which the territories must be conquered applies only to the original sanctification of <i>Erez Yisra'el</i> which took place by conquest but not to the subsequent sanctification by Ezra which was effected by means of <i>ḥazakah</i>.17<i class="footnote">Rabbi Raphael’s view requires further examination in light of Rabbi Gershuni’s distinction between the sanctification of Ezra by means of settlement and the sanctification of territories conquered by the Maccabees and Herod. As has been shown, R. Gershuni maintains that sanctification by virtue of <i>ḥazakah</i> is limited to the returnees from Babylonia. Subsequent territorial acquisitions achieved sanctification by virtue of conquest rather than settlement. If so, it may well be that sanctification by means of conquest can take place only when <i>Ereẓ Yisra’el</i> proper in its entirety is in Jewish hands.</i>
  Rabbi David Friedman of Karlin, "<i>Kuntres ha-Shevi'it," She'ilat David,</i> I, 36, develops the thesis that the requirement for the prior conquest of <i>Erez Yisra'el</i> applied only as long as the land was inhabited by the seven nations of Canaan. With the disappearance of these nations, he maintains, this prerequisite has lapsed.
  Rabbi Gershuni advances yet another consideration auguring against recognition of the newly-liberated territories as being endowed with the sanctity of the Land of Israel. He cites <i>Tosafot, Yevamot</i> 82b, to the effect that in the time of Ezra it was not mandatory that all cities settled by those who returned from Babylonia be sanctified with the sanctity of <i>Erez Yisra'el. Tosafot,</i> argues Rabbi Gershuni, apparently maintains that verbal sanctification was necessary as indeed is the case with regard to the special sanctity of Jerusalem and with regard to the sanctity of walled cities.18<i class="footnote">See also <i>Torat ha-Mo‘adim,</i> pp. 616-618.</i> Hence, had any city not been sanctified verbally it would have remained in its previous nonsanctified state. <i>Maharit,</i> I, no. 25, disagrees with <i>Tosafot</i> and maintains that the act of settlement itself constituted the act of sanctification and that no verbal sanctification was necessary. Rabbi Gershuni cites authorities who maintain that <i>Maharit</i>'s disagreement with <i>Tosafot</i> is limited to those areas within the boundaries vouchsafed to the Patriarchs. Only those areas divinely promised to Israel do not require verbal sanctification. Areas beyond these promised boundaries, he avers, must be verbally sanctified. Rabbi Gershuni argues that Syria and, according to some authorities (<i>Bet ha-Levi,</i> II, no. 50, and <i>Tevu'ot ha-Arez,</i> as cited by <i>Birkei Yosef, Oraḥ Hayyim</i> 489), Transjordan as well, are not included among the territories promised to Abraham and hence require verbal sanctification. This verbal sanctification was, of course, lacking in the conquests of the Six-Day War.
  R. Waldenberg, <i>Ẓiz Eli'ezer,</i> X, no. 1, secs. 18 and 26, presents an argument which would supersede all other considerations and preclude sanctification of any of the newly conquered territories, including even those possibly conquered by those who ascended from Egypt. R. Waldenberg argues that only territory captured for purposes of settlement may become sanctified. Areas conquered for purposes of erecting defense fortifications or for purposes of exacting tribute do not become sanctified. R. Ya'akov Emden, <i>Mor u-Kezi'ah</i> 306, indicates that it was for this reason that King Solomon's conquests in Lebanon did not become sanctified. R. Waldenberg argues that the territories acquired in the Six-Day War were seized for purposes of defense and that, if peace were assured, those territories would be restored. Since this was the intent at the time of conquest, he argues, no conquest for purposes of settlement ever took place and hence the territories are not endowed with the sanctity of <i>Erez Yisra'el.</i> Unfortunately, Rabbi Waldenberg's thesis is not analyzed, or even mentioned, by any of the other scholars.19<i class="footnote">See also the statement of R. Iser Yehudah Unterman, <i>Sḥanah be-Shanah,</i> 5728, pp. 103-104, suggesting that sanctification occurs only if conquest is “<i>be-ofan sofi</i>,” i.e., for purposes of permanent seizure as distinct from conquest as a tactical measure or for purposes of negotiation. As an halakhic consideration this distinction should presumably be understood as reflecting the principle that a <i>kinyan</i> does not convey title in the absence of <i>kavanah</i>. <i>Kavanah</i> must be understood as intention of acquisition in a final sense. Since sanctification is contingent upon <i>kinyan,</i> there can be no sanctification in the presence of a defective <i>kinyan.</i></i>
  IX. A Further Argument Affirming Sanctity of Liberated Territories
  Rabbi Raphael advances an ingenious argument which, if valid, would lead to the conclusion that the Negev as well as all the conquered territories are endowed with the sanctity of <i>Erez Yisra'el</i> even though those areas were not conquered or settled either in the days of Ezra or of Joshua. As noted earlier, <i>Sifre</i> declares that all conquered territories, including those lying outside the biblical boundaries of <i>Erez Yisra'el,</i> acquire sanctity as integral parts of the Holy Land. Rambam, however, stipulates that sanctity is acquired only if such areas are acquired by a king acting upon the directive of the Sanhedrin. It would appear that in the absence of a Sanhedrin there can be no sanctification.
  However, Rabbi A. I. Kook, <i>Mishpat Kohen,</i> no. 145, argues (on the basis of a discrepancy in Rambam's language in <i>Hilkhot Terumot</i> 1:2) that sanctification is contingent upon the Sanhedrin only in cases of "permitted" wars, i.e., wars undertaken for purposes of territorial aggrandizement. In such instances, prior sanction of the Sanhedrin is required. Obligatory wars, waged at the specific command of the Torah, require no such permission. Rabbi Kook argues that since permission of the Sanhedrin is not required, territory conquered in the course of obligatory wars is automatically endowed with the sanctity of the Holy Land. Wars of defense are obligatory wars. Hence, argues Rabbi Raphael, territories conquered as a result of the Six-Day War, since it was a defensive war, are automatically endowed with the sanctity of <i>Erez Yisra'el.</i> The identical argument was advanced earlier by R. Waldenberg, <i>Ẓiz Eli'ezer,</i> X, no. 1, sec. 18. Although Rambam declares that conquered territory lying outside the borders of the Land of Israel becomes sanctified only if conquered by a king, R. Waldenberg, R. Gershuni and R. Raphael, as noted previously, all contend that the reference does not apply exclusively to a monarch but includes any government of Israel.
  X. Status of Returned Territories
  Yet another important difference emerges from the disagreement between Rabbi Soloveichik and Rabbi Gershuni. Portions of the territory conquered during the course of the Six-Day War have been returned to the sovereignty of the nations from whom they were taken and additional territory will undoubtedly also be returned. If these territories have become sanctified, does their sanctity lapse upon their removal from the sovereignty of the State of Israel? If the conquest of the Six-Day War is equivalent to "settlement by Ezra," then such sanctity remains valid in perpetuity and any produce grown in those areas at any future time would be subject to the "laws contingent upon the Land." This would appear to be the case according to the authorities who (following Rabbi Soloveichik's argument) maintain that these areas have acquired sanctity. However, according to Rabbi Gershuni's argumentation, the very same authorities would maintain that these areas were sanctified, not by virtue of <i>ḥazakah</i> as in the days of Ezra, but rather by virtue of "conquest." Hence, the sanctification which occurred as a result of conquest would lapse upon loss of those territories, just as the sanctification of Joshua lapsed when those territories were lost with the destruction of the first Temple. Indeed, Rabbi Gershuni maintains that the areas conquered by the Maccabees and by Herod lost their sanctity in precisely this manner.
  It is readily apparent that it is not easy to resolve the ambiguities and differences of opinion surrounding the question of which territories are in fact endowed with the unique sanctity of the Land of Israel. The people of Israel, however, awaits with eager anticipation the time when many of these questions will be resolved in an entirely different manner. The Torah records that in His covenant with Abraham the Almighty vouchsafed to him territory vastly greater than that included within the historic boundaries of <i>Erez Yisra'el.</i> In the Messianic era this territory will be incorporated within <i>Erez Yisra'el</i> and will indeed share in the eternal sanctity of the Land of Israel.
  
  Chapter IX Judea and Samaria, Settlement and Return
  
  <i>The Holy One, blessed be He, took the measure of every land and found none that was suitable to bestow upon Israel other than the Land of Israel.</i>
  VA-YIKRA RABBAH XIII, 2
  <i>"And I will give you a desirable land" (Jeremiah 3:19) — a land which was desired by the great men of the world… a land which was good and all the kings of the earth longed for it.</i>
  MIDRASH TANHUMA, MISHPATIM 10
  Over the past number of years one of the most heatedly debated issues in Israel and in centers of Jewish population throughout the world has been the question of return of the liberated territories. Quite apart from strategic and political considerations as well as historical and emotional attachments, this issue involves a fundamental question of Jewish law. Analysis of the halakhic permissibility of return of portions of sanctified territory involves an examination of the ramifications of the <i>mizvah</i> concerning settlement in the Land of Israel and of the obligations which flow therefrom.
  The claim of the community of Israel to the Land of Israel in its entirety as its historic homeland is predicated upon God's covenant with Abraham (Genesis 15:7-21). However, with regard to three specific geographic areas—the Cave of Machpelah, the Temple Mount and Shechem—title to the land is based upon more conventional grounds. These particular sites are described in Scripture as having become the property of our ancestors by right of purchase long before they acquired title to the rest of the Land of Canaan. The uniqueness of these areas is underscored by the sages of the Midrash.1<i class="footnote"><i>Bereshit Rabbah</i> 79:7.</i> Why, impliedly queries the Midrash, is the narrative concerning Abraham's purchase of the sepulchre in the field of Machpelah spelled out in such minute detail (Genesis 23:3-17)? Why does the Bible so carefully identify the individual from whom David purchased the Temple Mount (II Samuel 24:18-25)? Why does the Torah relate that Jacob pitched his tent in Shechem and that he purchased the plot of land upon which he pitched his tent for the sum of 100 <i>kesita</i> (Genesis 33:19)? Answers the Midrash: "So that the nations of the world will not be able to taunt Israel saying, 'These [lands] are in your possession by virtue of theft.' " These historical facts are recorded for a specific purpose, viz., so that for all of posterity the gentile nations will never be in the position of being able to taunt the community of Israel with the claim that Israel lacks clear title to those historic sites.
  Curiously, it would appear as if, in underscoring this point, the Sages had prescient knowledge that it would be these very areas which would, in subsequent generations, become focal points of strife and controversy. If, indeed, there are today cities in the State of Israel regarding which Jewish sovereignty is more heatedly contested than others, those places are precisely Hebron, the site of the Cave of Machpelah, the Old City of Jerusalem whose unique sanctity flows from the Temple which stood within its precincts, and Nablus which stands on the site of Shechem of old. These locales, more so than any others, have in recent years been the site of rioting, of strife, and of violence. Those are the areas surrounding which there rages the greatest controversy with regard to the future designs of the government of the State of Israel. Ironically and unjustifiedly, it is concerning these cities that the taunts of the nations of the world are heard most vociferously. In these cities, even more so than elsewhere, Jews are regarded as usurpers.
  Scripture records the dialogue between Abraham and the inhabitants of Hebron which preceded purchase of the Cave of Machpelah. Abraham describes his status by declaring, "<i>ger ve-toshav anokhi imakhem</i>—I am a stranger and a resident among you" (Gen. 23:4). The biblical commentaries almost without exception struggle with the obvious contradiction inherent in this terminology. If one is a <i>toshav,</i> one is not a <i>ger.</i> If one is a <i>ger,</i> one is not a <i>toshav</i> If a person is a stranger, he is not a permanent resident; if a person enjoys rights of residency, he is not an alien. One may be either a citizen or a foreigner, a national or a stranger, but a person cannot be both at one and the same time.
  Quite apart from the answers to be found in the classical commentaries, a Jew of today knows exactly what Abraham meant. The verse may be understood quite literally, but only by a Jew who has visited Hebron. A Jew visiting Hebron today knows what it means to be a <i>ger</i> and a <i>toshav</i> at one and the same time without reconciliation of the inherent contradiction between these two emotions. A Jew feels at home in Israel. Is there any Jew who arrives in the Land of Israel and fails to feel that he has come back to his home? One feels that emotion every place in Israel and one feels it in Hebron also. But in Hebron one experiences another emotion as well, a feeling which can be verbalized only with difficulty. In Hebron, particularly at the Cave of Machpelah, one has the strange feeling, "Here I am; these are our holy places. And yet, there are strangers here telling me when I may enter and when I may not enter, where I may pray and where I may not pray." One experiences the dichotomy existentially: "This is all mine. Yet, if it is mine, why do I feel as a <i>ger</i>? Why is it that I feel that I am a stranger?" There is an ambivalence and a tension in the air which foster antithetical emotions. These feelings are difficult to reconcile and are indeed experienced without reconciliation. Nevertheless, a Jew knows instinctively and intuitively that the land is his and that this sacred site is an integral part of the Land of Israel. He knows existentially that, sooner or later, his ambivalence will dissipate and that ultimately there will be no question regarding who is the lawful resident or regarding who enjoys rights of sovereignty.
  An incisive observation regarding Abraham's purchase of this site is attributed to Rabbi Samuel Mohilever, one of the foremost exponents of religious Zionism. In purchasing this parcel of land for use as a burial place Abraham paid more than the fair market value. The land, according to rabbinic sources, was not at all worth the 400 <i>shekalim</i> of highest quality silver which Abraham paid. Why then does the Torah record the exact purchase price? R. Samuel Mohilever remarked, "The Torah here teaches us a lesson of great significance. The Torah emphasizes that there is no price that is too high for even the smallest portion of the land of Israel." Indeed, there is no price that is too high, not only as assessed in <i>shekalim</i> and <i>kesita,</i> or dollars and <i>lira,</i> but even in terms of the emotional coin which a Jew is, at times, called upon to pay.
  I
  An analysis of our obligations with regard to Judea and Samaria as well as with regard to other areas within the boundaries of the Land of Israel, both insofar as establishment of settlements and possible return of liberated territories is concerned, must begin with a careful examination of Numbers 33:53.2<i class="footnote">Contemporary scholars who have written on various aspects of the halakhic issues involved in the return of Judea and Samaria include R. Iser Y. Unterman and R. Zevi Yehudah Kook, <i>Shanah be-Shanah,</i> 5728, pp. 103-109; R. Joshua Aaronberg and S. Z. Shragai, <i>Shanah be-Shanah,</i> 5730, pp. 138-145; R. Ovadiah Hadaya, <i>No‘am,</i> XI (5728), 178-184; R. Betzalel Zolti, <i>Torah she-be-‘al Peh,</i> XI (5729), 43-54; R. Abraham Weingart and Dr. Mordecai Breuer, <i>Ha-Ma‘ayan,</i> Tammuz 5738, pp. 1-29, and R. Sha’ul Israeli, R. Chaim David Halevi and Dr. Mordecai Breuer, “<i>Af Sha’al</i>”—<i>Miẓvah Min ha-Torah?</i>, a monograph published by <i>Oz ve-Shalom, Ḥug Ra‘ayoni-Medini le-Ẓiyonut Datit</i> (Jerusalem, 5738).</i> This verse reads: "<i>ve-horashtem et ha-arez ve-yeshavtem bah</i>." A literal translation would read, "And you shall inherit the land and you shall dwell therein." The words "you shall inherit the land" are understood by all biblical exegetes as meaning, "you will take physical possession of the land" by casting out those who live therein. But the implications of the verse can be understood in at least three, and perhaps four, diverse ways. The passage can be understood simply as a promise and as a prognostication. If the verse is understood in this manner God is making no demands and is issuing no commandment. He is simply informing us of what will come to pass. In foretelling future events, God informs us, "You shall indeed inherit the land." This interpretation is cited by Ramban only to be dismissed peremptorily. To the best of my knowledge, none of the classical biblical commentators is willing to accept this interpretation.3<i class="footnote">The interpretation is cited by Ramban both in his commentary on Numbers 33:53 and in his commentary on Rambam’s <i>Sefer ha-Miẓvot, miẓvot aseh,</i> addenda, no. 4. From the context of the latter comment, it is clear that Ramban ascribes this position to Rambam and assumes that the latter failed to consider settlement in <i>Ereẓ Yisra’el</i> to be one of the 613 precepts because he understood this verse to be in the nature of <i>yi‘ud ve-havtaḥah,</i> or anticipation and promise. There is, however, no evidence that Rambam did, in fact, interpret the verse in this manner.</i>
  Rashi offers an entirely different interpretation of this verse. Rashi comments, "You shall cast out the inhabitants, then you will be able to dwell therein. If you do so, then your dwelling therein will be permanent in nature. But if not—if you do not first cast out the inhabitants—then you will be unable to remain there." Rashi, no less than Ramban, refuses to understand this verse as constituting mere prognostication of future events. According to Rashi, the passage is to be seen as constituting prudent advice. Rashi understands the verse as informing us that if we wish to remain in the Land of Israel, there is but one way of doing so. If Jews are to enter the land and allow the Canaanite populace to remain, Jewish habitation in the land will not be tranquil and will not long endure. In order to achieve permanence and security our ancestors are advised to displace the indigenous populace.
  Ramban, in contradistinction to Rashi, understands this verse as an admonition and as a positive commandment. According to Ramban, this verse constitutes one of the 613 commandments binding upon the people of Israel.4<i class="footnote">Cf., however, R. Moses Feinstein, <i>Iggerot Mosheh, Even ha-Ezer,</i> I, no. 102, who asserts that according to Ramban observance of this commandment is discretionary rather than mandatory; see below note 9. Cf., also R. Shlomoh Kluger, <i>Ha-Elef Lekha Shlomoh,</i> no. 106, who maintains that even for Ramban the <i>miẓvah</i> is binding only at such time as the people of Israel “dwell upon their land,” i.e., when they have “inherited” the land, but that at other times the <i>miẓvah</i> is suspended.</i> However, if the comments of Ramban are analyzed carefully it may readily be seen that included in this single commandment are four separate and distinct components. In his commentary on the Bible, Ramban states:
  In my opinion this is a positive commandment. [God] commands them to dwell in the Land and to inherit it for He has given it to them and [commands them] not to disdain the inheritance of God. And should it occur to them to go and to conquer the land of Shinar or the land of Assyria or any other [country] and settle therein they would [thereby] transgress the commandment of God … this verse constitutes a positive commandment and [God] reiterates this commandment in many places, [e.g.] "Go and inherit the Land" (Deut. 1:8).
  This position is reiterated by Ramban with significant amplification in his commentary upon Rambam's <i>Sefer ha-Mizvot, mizvot aseh,</i> addenda, no. 4. The Gemara, <i>Makkot</i> 23b, records a dictum attributed to R. Simlai positing a complement of 613 precepts. Ramban differs significantly with Rambam regarding the precise identification of these 613 commandments. In a number of cases items enumerated as commandments by Rambam are not viewed as such by Ramban. Conversely, Ramban substitutes other precepts in his enumeration in order to complete the listing of 613 commandments. The commandment regarding settlement in the Land of Israel is among the dicta omitted by Rambam but posited as commandments by Ramban. Thus Ramban declares:
  We have been commanded to inherit the Land which God, may He be exalted, gave to our fathers, Abraham, Isaac and Jacob and not to leave it in the hands of other nations nor [leave it] desolate…. Similarly, … if our tribes wish to leave it and to conquer for themselves the land of Shinar or Assyria or other places, they are not permitted [to do so]… this is a positive commandment for posterity, incumbent upon each one of us even during the period of exile….
  The verse in question thus bids us 1) to conquer the land by force of arms; 2) to dwell in the land;5<i class="footnote">This is also the view of R. Shimon ben Ẓemaḥ Duran, <i>Teshuvot Tashbaẓ,</i> III, no. 288; <i>Teshuvot Rashbash,</i> no. 2; <i>Teshuvot Me‘il Ẓedakah,</i> no. 26; <i>Pe’at ha-Shulḥan</i> 1:3; and appears to be that of R. Judah ha-Levi, <i>Kuzari,</i> II, secs. 23-24. <i>Rashbash</i> states that the obligation is suspended if fulfillment would lead to divorce, would necessitate leaving small children behind, would result in dependence upon charity for a livelihood, or would involve danger. <i>Terumat ha-Deshen,</i> II, no. 88, speaks of residence in Israel as <i>shevaḥ gadol u-ma‘alah,</i> but apparently not an obligation, and advises against settlement in <i>Ereẓ Yisra’el</i> if, for sociological reasons, the move would lead to diminished piety or fear of God. <i>Ḥatam Sofer, Yoreh De‘ah,</i> no. 234, citing <i>Megillah</i> 16b which reports that Ezra did not leave Babylonia to return to <i>Ereẓ Yisra’el</i> during the lifetime of his master, Baruch ben Neriyah, declares that, if one is forced to choose between the two, enhanced Torah study is preferable to settlement in Israel. See also <i>Teshuvot Me‘il Ẓedakah,</i> no. 26, and <i>Sedei Ḥemed,</i> V, <i>Ma‘arekhet Ereẓ Yisra’el,</i> no. 9, Cf., R. Sha’ul Israeli, <i>Ereẓ Ḥemdah</i> (Tel Aviv, 5717), pp. 33-43; and <i>Shanah be-Shanah,</i> 5725, p. 135; and <i>Amud ha-Yemini</i> (Tel Aviv, 5726), no. 22, sec. 5.</i> 3) to refrain from seizing any other land for the purpose of establishing a national homeland therein in substitution for the Land of Israel; and 4) not to allow the land to remain in the hands of any other nation or to allow it to remain desolate. The final point, recorded in Ramban's commentary on the <i>Sefer ha-Mizvot,</i> but absent in his commentary on the Bible, is highly significant. It is quite conceivable that the entire community of Israel might converge upon a limited portion of the total area of the Land of Israel vouchsafed to our ancestors. Every individual Jew would thereby have fulfilled his obligation with regard to establishing domicile in the promised land. Every single Jew might indeed dwell in the Land of Israel and yet the commandment "and you shall inherit the land" would remain unfulfilled. An intrinsic component of the commandment, declares Ramban, is not to allow any portion of the land to remain in the possession of any other nation. Moreover, even if no foreign nation enjoys sovereignty over any portion of the land, the commandment remains unfulfilled so long as any portion, no matter how insignificant, of the Land of Israel, is permitted to remain desolate, i.e., uncultivated and unpopulated.6<i class="footnote">It is instructive to examine Ramban’s comments in his talmudic novellae, <i>Baba Batra</i> 24b, in light of this statement in his commentary on the <i>Sefer ha-Miẓvot.</i> The Mishnah, <i>Baba Batra</i> 25b, states that, in order to prevent damage to the well, no tree may be planted within twenty-five cubits of an existing well. If the tree has, in fact, been planted, the Sages rule that the tree must be removed, but that the proprietor of the well must indemnify the owner of the tree against the loss sustained in the removal. R. Jose disagrees and declares that the tree need not be removed. Rashi indicates that the Sages require indemnification for loss of the tree because a newly planted sapling does no damage to the well; any possible damage lies in the distant future. Why, then, do the Sages require that the tree be removed immediately? Ramban, citing the Palestinian Talmud, <i>Baba Batra</i> 2:10, answers that the consideration is <i>yishuv ha-areẓ,</i> i.e., settlement of the land. According to the Palestinian Talmud, the Sages are of the opinion that the Land of Israel is in greater need of wells than of trees. Hence, the rabbinic decree requiring the removal of the tree was promulgated in order to prevent any possible damage to the well. R. Jose is of the opinion that the Land of Israel is equally in need of both wells and trees. For Ramban, the common consideration reflected in these divergent opinions is promotion of the cultivation of <i>Ereẓ Yisra’el</i> as a halakhic desideratum. This, for Ramban, flows directly from the precept “and you shall dwell therein” which is understood as meaning, in part, that the land not be allowed to remain desolate. The Mishnah thus adds a qualitative dimension to the obligation, <i>viz</i>., not only must the land in its entirety be cultivated, but also the quality of cultivation is to be enhanced to the greatest possible degree.</i> Thus, according to Ramban, there exists an obligation not simply to establish residence in the Land of Israel, but also to extablish a Jewish homeland upon the sanctified territory in its entirety and to settle upon and cultivate every particle of sacred soil.
  As noted earlier, Rambam does not enumerate the commandment "and you shall inherit the land and dwell therein" in his compilation of the 613 precepts. The simplest and most obvious reason for this omission is that Rambam does not view this injunction as constituting a mandatory obligation binding upon all generations. Rambam may well have deemed the commandment to have been binding only upon the generation of the wilderness to whom it was addressed and to those who were charged with the original conquest of the land of Canaan,6a<i class="footnote">The phrase “the wars of Joshua to conquer” employed in <i>Sotah</i> 44b as the definition of <i>milḥemet ḥovah</i> certainly appears to indicate that the original conquest was commanded. See, however, R. Shlomoh Goren, <i>Maḥanayim,</i> no. 69 (lyar 5722), pp. 5-15, reprinted in his <i>Torat ha-Shabbat ve-ha-Mo‘ed</i> (Jerusalem, 5742), pp. 338-356, who draws attention to Rambam’s ruling in Hilkhot Melakhim 6:1 to the effect that even in the wars of Joshua it was required that the indigenous populace be offered terms of peace and were to be permitted continued residence upon acceptance of these terms. Rabbi Goren maintains that the wars of Joshua constituted <i>milḥamot ḥovah</i> or <i>milḥamot miẓvah,</i> not by virtue of a commandment to conquer the land of Canaan per se, but by virtue of the entirely independent commandment to annihilate the Seven Nations; see Rambam, Hilkhot Melakhim 5:1. Cf., below, notes 7 and 8 for Rabbi Israeli’s analysis of Rambam’s position as formulated in his <i>Ereẓ Ḥemdah.</i> The phraseology of <i>Sotah</i> 44b also seems to be at variance with the position of R. Aaron Soloveichik cited below, note 9.</i> but not intended as a binding commandment for all of posterity.7<i class="footnote"><i>Megillat Ester,</i> however, understands Rambam’s position as being that the commandment lapsed only upon the destruction of the Temple. <i>Avnei Nezer, Yoreh De‘ah,</i> II, no. 454, sec. 4, and R. Ovadiah Yosef, <i>Torah she-be-‘al Peh,</i> XI (5729), 36, assume that the <i>miẓvah</i> of settlement in Israel will again be binding in the messianic era. Accordingly they take exception to <i>Megillat Ester</i>’s explanation of Rambam’s omission of this commandment from his enumeration of the 613 <i>miẓvot</i> since Rambam does reckon among this number <i>miẓvot</i> which will again be binding in the days of the Messiah. It, however, appears evident that <i>Megillat Ester</i> assumes that settlement in Israel, although certain to occur with the advent of the Messiah, will not have the status of a binding <i>miẓvah.</i> Perhaps this is because Jews in the messianic era will have sufficient motivation to immigrate to <i>Ereẓ Yisra’el</i> even in the absence of a binding commandment.</i> Alternatively, Rambam may have interpreted the verse as constituting sage counsel, as did Rashi, rather than as a commandment.8<i class="footnote">R. Sha’ul Israeli explains Rambam’s position on the basis of his own thesis as cited above, note 7. He asserts that Rambam understands the verse “and you shall inherit the land” as a necessary prerequisite for fulfillment of the subsequent directive “and you shall dwell therein.” Rambam differs from Ramban, according to Rabbi Israeli, in understanding the term “<i>ve-horashtem”</i> as meaning military conquest and displacement of the indigenous populace. This form of “inheritance” is not merely not required but also prohibited in our era by virtue of the “three oaths” and the biblical statement concerning exile. Since “and you shall dwell therein” requires antecedent inheritance,” Rambam adopts the position that the <i>miẓvah</i> concerning settlement has lapsed as well.</i> It thus follows that, in our time, according to Rambam, there is no divine imperative requiring a Jew to remove himself from the Diaspora and to establish residence in Israel.
  This is certainly how Rambam is understood by the seventeenth-century scholar, R. Isaac de Leon.9<i class="footnote">Rambam is also understood in this manner by <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah,</i> no. 234. In addition, Ritva, <i>Yoma</i> 38a, clearly maintains that there is no objection, at least subsequent to the dispersion of Israel, to maintaining continued residence in the Diaspora. See <i>Avnei Nezer, Yoreh De‘ah,</i> II, no. 454, sec. 63. I believe this also to be the opinion of Maharam of Rothenberg cited by Rosh, <i>Ketubot</i> 13:17 and <i>Tur Shulḥan Arukh</i> 75; see below, note 33.</i> In his work, <i>Megillat Ester,</i> a commentary on the <i>Sefer ha-Mizvot,</i> this authority seeks to defend Rambam's position against Ramban's critique by citing the "three oaths" described in <i>Ketubot</i> 111a.10<i class="footnote">For an analysis of the halakhic implications of these oaths see <i>Contemporary Halakhic Problems,</i> I, 14-15.</i> The Gemara tells us that at the time that Jews were banished from the Land of Israel and driven into exile, God caused the Jews and the nations of the world to swear a series of solemn oaths. One of these oaths bound the people of Israel not to attempt to retake the Land of Israel by force. <i>Megillat Ester</i> questions how it may logically be possible that there exist a binding commandment to conquer and to settle the Land of Israel if at one and the same time Jews were caused to swear an oath not to exercise force in regaining the Land of Israel. According to this authority, the very possibility of such an oath is a clear indication that the commandment "and you shall inherit the land" is not addressed to all generations in all ages.
  Indeed, Rambam himself strongly encourages settling in the Land of Israel. Rambam, Hilkhot Melakhim 5:12, declares, "A person should live in the Land of Israel under all circumstances, even in a city in which the majority are heathens, and should not live outside the Land even in a city in which the majority are Jews." This statement follows immediately after Rambam's declaration, Hilkhot Melakhim 5:11: "The Sages said that the sins of whosoever dwells in the Land of Israel are forgiven.… Even if one walks four cubits therein, one is assured of life in the World to Come. So too, one who is buried there will obtain atonement…." Residence in the Land of Israel is thus regarded by Rambam as meritorious in the highest degree, but not as a binding obligation.
  It should, however, not be inferred from Rambam's failure to classify settlement in the Land of Israel as a <i>mizvah</i> that it was his position that residence in Israel is not preferable to residence in the Diaspora.11<i class="footnote">This seems to be inherent in the position of <i>Mahari Asad,</i> no. 88; cf., however, <i>Pe’at ha-Shulḥan, Bet Yisra’el,</i> 1:15. See also R. Abraham I. Kook, <i>Shabbat ha-Areẓ,</i> Introduction, ch. 15, as well as the comments of <i>Kli Yakar,</i> Genesis 13:17.</i> Even in the absence of a specific binding obligation concerning residence in the Land of Israel in all generations, <i>Erez Yisra'el</i> remains unique for all Jews. Despite the absense of the imperative engendered by a <i>mizvah,</i> domicile in <i>Erez Yisra'el</i> carries with it great <i>zekhut</i> or merit.
  This notion of merit, as distinct from compensation for fulfillment of a divine commandment, is difficult to elucidate. Nevertheless, it would seem that the merit associated with residence in the Land of Israel is reflected in an enhanced form of divine guardianship. Providence with regard to the community of Israel is the product of a particular relationship between the individual and God. The greater the bonds linking man to God, the greater is the degree of divine guardianship manifest with regard to the individual.12<i class="footnote">For a fuller discussion of this concept of providence see my <i>Providence in the Philosophy of Gersonides</i> (New York, 1973), pp. 25-29.</i> Or, stated somewhat differently, the greater the manifestation of the divine presence the more intense is providential guardianship.13<i class="footnote">This thesis is developed in detail by R. Ezekiel Landau, <i>Noda bi-Yehudah, Mahadurah Tinyana, Oraḥ Ḥayyim,</i> no. 150.</i> The Land of Israel is described as the "land which the Lord your God cares for; the eyes of the Lord your God are always upon it from the beginning of the year unto the end of the year" (Deut. 11:12), i.e., the land in which God's presence is omnipresent and most keenly manifest. Divine beneficence flows directly from the divine presence. The more intense the divine presence, the greater is the degree of providential guardianship.
  The Gemara, <i>Ta'anit</i> 10a, declares that in <i>Erez Yisra'el</i> bounty flows directly from God Himself, whereas in other lands it is channeled through a "messenger." <i>Avnei Nezer, Yoreh De'ah,</i> II, no. 454, sec. 14, amplifies this comment by stating that in other lands divine beneficence is transmitted through angels while the Land of Israel is subject to the immediate and direct concern of God.14<i class="footnote">Cf., R. Moses Sofer, <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah,</i> no. 234, who develops a similar thesis but speaks of other lands as being “nurtured” by, and as deriving their “vitality” through, the intermediacy of the Land of Israel which by virtue of its sanctity is the source of such beneficence. Even though subsequent to the destruction of the Temple Jerusalem has lost its special status insofar as fulfillment of <i>miẓvot</i> uniquely associated with the holy city is concerned, Jerusalem is to be preferred over other cities in Israel because of its enhanced holiness. Similarly, <i>Avnei Nezer,</i> sec. 33, asserts that Jerusalem enjoys special status by virtue of the presence of the divine <i>shekhinah.</i></i> In this vein may be understood the Sages' comment, "One who dwells in <i>Erez Yisra'el</i> is comparable to one who has a God, but one who dwells outside the Land is comparable to one who has no God" (<i>Ketubot</i> 110b).15<i class="footnote">See also the statement found in <i>Arakhin</i> 32b regarding enhanced efficacy of prayer in <i>Ereẓ Yisra’el</i> due to the <i>zekhut</i> of the Land.</i> The comments of the <i>Zohar</i> on Genesis 12:1 make it clear that God's special relationship with <i>Erez Yisra'el</i> predates sanctification of the land and that it was in order to enjoy this unique form of Providence that God commanded Abraham to journey to the Promised Land.
  That special merit accrues to one who dwells in the Land of Israel even in the absence of a divine commandment, and indeed even before it became the homeland of the Jewish nation, may be inferred from the midrashic comment upon the verse "And Jacob was sorely afraid" (Gen. 37:8). Jacob's fear seems to be groundless. Earlier, while fleeing from the wrath of his brother Esau, God had promised him, "And behold I am with you and I will watch over you wherever you will go" (Gen. 28:15). Why, then does Jacob find cause for fear upon his return from the home of Laban? The Midrash comments that Jacob feared a confrontation with his brother Esau because, "All those years Esau dwelt in the Land of Israel; perhaps he will come against me, by virtue of the power of residence in the Land of Israel."16<i class="footnote"><i>Bereshit Rabbah</i> 76:2.</i>
  The comments of the Midrash are problematic to say the least. According to Rashi's understanding of Numbers 33:53 there exists no biblical commandment with regard to dwelling in the Land of Israel. Even according to Ramban there certainly existed no commandment regarding domicile in the Land of Israel prior to the divine utterance, "And you shall inherit the land and dwell therein." The Patriarchs, to be sure, did fulfill <i>mizvot</i> without having been formally obligated to do so, and they indeed fulfilled such commandments even prior to the revelation of <i>mizvot.</i> Nevertheless, it is clear that they did not fulfill all <i>mizvot.</i> For example, "<i>ve-kidashto</i>—and you shall sanctify him" (Lev. 21:8) constitutes a <i>mizvah</i> pertaining to the priesthood. However, prior to the establishment of the Aaronic dynasty and the sanctification of the progeny of Aaron as priests, this <i>mizvah</i> would have been completely vacuous.
  Similarly, it would appear that commandments predicated upon the sanctity of <i>Erez Yisra'el,</i> e.g., the offering of first fruits and tithes, could not be fulfilled prior to sanctification of the land. By the same token, the <i>mizvah</i> of dwelling in the Land of Israel may well be contingent upon the land having become <i>Erez Yisra'el</i> in actuality. "You shall inherit the land" is a logical antecedent of the <i>mizvah</i> "and you shall dwell therein."17<i class="footnote">See <i>Tosafot, Gittin</i> 2a and <i>Teshuvot Maharit,</i> I, no. 47, who declare that the <i>miẓvah</i> of settlement in <i>Ereẓ Yisra’el</i> is limited to those areas settled by returnees from the Babylonian exile. Territory conquered by Joshua but not resettled by Ezra remains unsanctified and hence settlement in those areas does not constitute fulfillment of this precept. It is thus evident that fulfillment of the <i>miẓvah</i> of settlement is contingent upon antecedent sanctification. See also <i>Avnei Nezer, Yoreh De‘ah,</i> II, no. 454, sec. 32, who notes the seemingly contradictory position reflected in the midrashic statement quoted; nevertheless, <i>Avnei Nezer,</i> secs. 33 and 62, affirms the thesis advanced by <i>Maharit</i>. A differing opinion is advanced by Radbaz, <i>Hilkhot Sanhedrin</i> 4:6, in the name of <i>Kaftor va-Feraḥ</i> 10:38 who maintains that for all purposes other than the obligations concerning <i>terumah</i> and <i>ma’asrot</i> the entire territory conquered by Joshua, including those areas not resettled by Ezra, is to be regarded as sanctified territory. This is also the view of Ramban as expressed in an addendum to his novellae on the Talmud, <i>Gittin</i> 2a, and of <i>Ba‘al ha-Terumot</i> (cited in R. Yechiel Michal Tucatzinsky, <i>Sefer Ereẓ Yisra’el,</i> I, 26:7b). This view is accepted by <i>Ḥazon Ish, Shevi‘it</i> 3:17 and <i>Hilkhot Avodat Kokhavim</i> 65:1, and by Rabbi Abraham I. Kook, <i>Shabbat ha-Areẓ,</i> Introduction, ch. 12. Nevertheless, even according to this view, the basic principle, viz., that sanctification is a necessary condition for fulfillment of the <i>miẓvah</i> concerning settlement retains its cogency; the only point which is disputed is whether or not the sanctification of Joshua satisfies this condition.</i> It is the accepted position in rabbinic scholarship that sanctification of the land did not occur until our ancestors crossed the river Jordan and conquered the Promised Land.18<i class="footnote">Sanctification of the land and fulfillment of the <i>miẓvah</i> of settlement should not be confused with acquisition and proprietorship. <i>Baba Batra</i> 100a and 119a, <i>Avodah Zarah</i> 53b, as well as the Palestinian Talmud, <i>Ḥalah</i> 2:1, clearly ascribe proprietorship, and the halakhic ramifications which flow therefrom, to Abraham. <i>Baba Batra</i> 100a even discusses the <i>kinyan,</i> or mode of acquisition, by which Abraham acquired title. <i>Bereshit Rabbah</i> 41:6, cited by Rashi in his commentary on Genesis 13:7, ostensibly differs and maintains that Abraham enjoyed no rights of proprietorship so long as “the Canaanite and the Perizzite abode … in the land,” i.e., title became vested in Abraham only upon conquest of the land and displacement of the Seven Nations. See R. Shlomoh Goren, <i>Torat ha-Mo‘adim,</i> pp. 605-607. This apparent contradiction is readily resolved on the basis of <i>Tosafot, Rosh ha-Shanah</i> 13a, who declares that title to the land was immediately vested in Abraham, but that the right to usufruct (<i>peirot</i>) was reserved to the indigenous people until conquest of the land by Abraham’s progeny. This fully explains the controversy between the shepherds of Abraham and the shepherds of Lot and Abraham’s refusal to allow his flocks to graze freely. <i>Tosafot, Yevamot</i> 82b, cites the opinion of Rabbenu Ḥananel who asserts that sanctification did indeed occur simultaneously with acquisition of the land by Abraham. The latter position is, however, refuted by <i>Tosafot.</i></i>
  Moreover, although it has been argued that a non-Jew who performs a <i>mizvah</i> is divinely rewarded for his action,19<i class="footnote">See <i>Contemporary Halakhic Problems</i>, I, 317-323.</i> there is no reason to assume this to be the case with regard to residence in the Land of Israel. In light of the divine injunction "and you shall inherit the land" which exhorts the community of Israel to displace the indigenous population, it is hardly conceivable that a non-Jew whose very residence in the Land of Israel thwarts the divinely ordained <i>telos,</i> should be rewarded for doing so. Jews are expressly forbidden to permit non-Jews to reside in the Land of Israel unless they undertake to observe the Noachide commandments.20<i class="footnote">Rambam, <i>Hilkhot Avodat Kokhavim</i> 10:6.</i>
  Esau, subsequent to his sale of the birthright, had no claim to <i>Erez Yisra'el.</i> In light of the reasons which have been indicated it is not at all logical to assume that in dwelling therein Esau could claim fulfillment of a <i>mizvah</i> even as "one who is not commanded yet fulfills." Nevertheless, Jacob is depicted by the Midrash as being fearful of his brother because Esau had resided in <i>Erez Yisra'el</i> during the twenty-year period which Jacob spent in the house of Laban.
  This difficulty is readily resolved upon recognition that an individual dwelling in <i>Erez Yisra'el</i> accumulates great merit even in the absence of fulfillment of an express <i>mizvah.</i> The inherent holiness of the land is itself sufficient to generate merit. Such merit can be acquired even by an Esau and may well stand him in good stead in his battle against Jacob.21<i class="footnote">Cf., <i>Avnei Nezer, Yoreh De‘ah,</i> II, no. 454, secs. 36-37.</i>
  The possibility of acquiring merit in the absence of fulfillment of a <i>mizvah</i> is explicitly entertained by <i>Teshuvot Maharit,</i> II, <i>Yoreh De'ah,</i> no. 28. The Sages teach, "He who walks four cubits in the Land of Israel is assured of a portion in the World to Come" (<i>Ketubot</i> 111a). <i>Maharit</i> tentatively suggests that this may apply even to a tourist who has no intention of settling in the Holy Land. There is no "known <i>mizvah</i>" associated with such a sojourn, declares <i>Maharit,</i> but merit is engendered nonetheless. At the very least, asserts <i>Maharit,</i> the dictum applies to one who was not able to fulfill the commandment by settling in the Land of Israel but is buried there.
  The comments of <i>Sifre</i> on Deuteronomy 12:29 may also be explained in a similar vein. This tannaitic source recounts the extreme distress of a number of illustrious personages who found themselves outside the Holy Land. Upon their return they declared, "Dwelling in the Land of Israel is equal to all the <i>mizvot</i> of the Torah." This statement was uttered subsequent to the exile of Israel, at a time when, according to Rambam, residence in <i>Erez Yisra'el</i> did not constitute a <i>mizvah.</i> For Rambam this dictum may be understood as expressing the notion that the <i>zekhut</i> of settlement in Israel is as great as the merit acquired in performance of all other <i>mizvot.</i>22<i class="footnote">Cf., <i>Avnei Nezer, Yoreh De‘ah,</i> II, no. 454, secs. 2-3, who, on the basis of the extant text, questions <i>Megillat Ester</i>’s explanation that the sorrow expressed was due to the inherent inability to fulfill this precept subsequent to the exile. The analysis here advanced is compatible with the extant text of <i>Sifre.</i></i>
  The Sages certainly sought to promote settlement in <i>Erez Yisra'el</i> even subsequent to the exile. There are myriad aspects of rabbinic legislation, e.g., permission to direct a non-Jew to draw up a bill of sale on the Sabbath for the purchase of land in <i>Erez Yisra'el,</i> the power to compel a spouse to remove the familial residence to <i>Erez Yisra'el,</i> to cite but two, which cannot, according to the position of Rambam, be explained in terms of encouraging the fulfillment of a divine command. The Sages, in promulgating each of these ordinances, sought rather to promote settlement of the Land of Israel because of the merit inherent therein rather than because of the <i>mizvah</i> inherent in the act.
  Thus there exists a clear difference of opinion with regard to whether or not there is an obligation in our day to settle in the Land of Israel. According to the opinion of Ramban all Jews presently residing in the Diaspora, in the absence of mitigating circumstances, are religiously remiss in not having made <i>aliyah.</i> In not doing so, observant Jews in the Diaspora presumably rely upon the authority of Rambam. In a recently published letter, allegedly written by the renowned author of <i>Netivot ha-Mishpat,</i> R. Ya'akov of Lissa, declares, "We possess a tradition to the effect that nowadays there is no obligation… and perforce we comport ourselves in accordance with [the opinion of] Rambam."23<i class="footnote">Cited in R. Yosef Sheinberger, <i>Amud Esh</i> (Jerusalem, 5714), pp. 105-109. A similar view is expressed by Ḥafeẓ Ḥayyim in a letter published by R. Menachem Gerlitz, <i>Mara de-Ar‘a Yisra’el</i> (Jerusalem, 5734), II, 27-29 and in <i>Koveẓ Mikhtavim</i> (Bnei Brak, 5735), pp. 19-21. This also appears to be the opinion of <i>Knesset ha-Gedolah, Yoreh De‘ah</i> 239.33.</i> In the absence of Rambam's position one would be hard put to excuse failure to settle in Israel. Indeed, in Judah ha-Levi's <i>Kuzari,</i> when questioned by the king of the Khazars regarding his continued presence in the Diaspora, the Rabbi candidly concedes that he is remiss and declares:
  This is a severe reproach, O king of the Khazars. It is the sin which kept the divine promise with regard to the second Temple, <i>viz</i>., 'Sing and rejoice, O daughter of Zion' (Zech. 2:14), from being fulfilled. Divine Providence was ready to restore everything as it had been at first, if they had all willingly consented to return. But only a part was ready to do so, whilst the majority and the aristocracy remained in Babylon, preferring dependence and slavery, and unwilling to leave their houses and their affairs.24<i class="footnote">See R. Judah ha-Levi, <i>Kuzari,</i> II, secs. 23-24; cf., above, note 3. Cf., also R. Moses Feinstein, <i>Iggerot Mosheh, Even ha-Ezer,</i> I, no. 102 and R. Ovadiah Yosef, <i>Torah she-be-‘al Peh,</i> XI (5729), 40-41.</i>
  II
  The contrary position of Ramban requires careful elucidation. The objection formulated by <i>Megillat Ester</i> is a very cogent one. Ramban enumerates the commandment "and you shall inherit the land" as one which is binding upon all of posterity. Yet, in exacting the oath described in <i>Ketubot</i> 111a, God clearly makes known to us that we dare not reconquer the Land of Israel by force of arms. This difficulty may be resolved upon proper understanding of Ramban's position. It would appear that a correct analysis requires that a distinction be made between the various facets of this commandment. Ramban, as shown earlier, enumerates four distinct aspects of the precept concerning settlement in the Land of Israel. For Ramban, the aspect of the commandment which requires a Jew to reside in the Land of Israel is assuredly in the nature of a personal obligation which devolves upon every Jew as an individual. In contradistinction, the obligation not to permit any part of the territory of the Land of Israel to remain desolate is certainly an obligation which devolves only upon the community as a totality. At any given time an individual can live in but one home and is physically capable of cultivating only a limited area of land. Theoretically, it is quite possible for every single Jew to live in Israel, but for vast sections of the land to remain desolate. In such a situation every individual Jew would be in the position of having discharged his personal obligation in fulfilling the commandment "and you shall dwell therein" but the divine decree that the land not be allowed to remain desolate would yet remain unfulfilled. The obligation not to allow any part of the Land of Israel to remain in the hands of a gentile nation or to remain desolate cannot be fulfilled by any particular individual but devolves upon the entire people of Israel as a community.
  Similarly, that aspect of the commandment which calls upon the people of Israel to conquer the Land of Israel must be understood as constituting a communal obligation.24a<i class="footnote">Cf., R. Sha’ul Israeli, <i>Torah she-be-’al Peh</i>, X (5728), 48. Rabbi Israeli agrees that according to Rambam, as evidenced from his statements in <i>Hilkhot Terumot</i> 1:2, conquest of <i>Ereẓ Yisra’el</i> is a communal obligation but avers that Rambam disagrees and maintains that since conquest of <i>Ereẓ Yisra’el</i> is encompassed in one <i>miẓvah</i> together with the obligation to establish residence therein, conquest of the land must be considered to be an obligation devolving upon each individual rather than upon the community as an entirety.</i> Since, as a people, Israel is in exile and the dispersion is the product of divine decree, it is entirely reasonable that those obligations concerning inheritance and settlement of the Land of Israel which are incumbent upon the community be suspended during the period of exile. Thus, even according to the opinion of Ramban, there exists no obligation to wage war for the purpose of reclaiming the Land of Israel. The "three oaths" serve to forbid military reconquest during the period of exile.
  Individual obligations posited by the same commandment are, however, not suspended during the period of exile. Settlement in the Land of Israel by individuals and even by large groups of individuals is not inconsistent with banishment of the people of Israel from its homeland. Individuals were never forbidden to return to <i>Erez Yisra'el</i> provided that their return involved neither armed force nor rebellion against an occupying power. Indeed, according to Ramban, the commandment "and you shall dwell therein" obligates individuals to return and to dwell in the Land of Israel, when such is feasible.25<i class="footnote">As cited earlier, R. Sha’ul Israeli, <i>Ereẓ Ḥemdah,</i> pp. 12-13, asserts that “you shall inherit the land” is a necessary prerequisite for fulfillment of the further obligation “and you shall dwell therein.” Settlement in the absence of “inheritance,” in his opinion, does not constitute fulfillment of a <i>miẓvah</i> and hence, it would follow, is not obligatory even according to Rambam. “Inheritance” is defined by Rabbi Israeli as not necessarily restricted to military conquest but includes “political conquest” as well, i.e., “sovereignty over the area in regard to possibility of settlement without [need for] attention to the [non-Jewish] civil authority….” This position appears to be contradicted by Rambam’s comments in <i>Hilkhot Terumot</i> 1:10. Rambam implies, albeit in a different context, that were a non-Jew who purchases land in <i>Ereẓ Yisra’el</i> to have abrogated its sanctity thereby, subsequent repurchase by a Jew would convey the status of <i>kibush yaḥid</i> or “individual conquest” upon that parcel of land simply by virtue of acquisition by a Jew without regard to other considerations. Cf., R. Aaron Soloveichik, <i>Torah she-be-‘al Peh,</i> XVI (5734), pp. 81-82. Rabbi Israeli makes the further point that the <i>miẓvah</i> of settlement in <i>Ereẓ Yisra’el</i> can be fulfilled only by purchase but not by leasing land or a home. This comment should presumably be understood as excluding only residence upon land leased from a non-Jew, but not establishing residence upon land rented from a Jewish landlord.</i> The distinction is that of a communal obligation versus a personal obligation. "And you shall inherit the land" constitutes a communal obligation which is suspended for the period of the exile; "and you shall dwell therein" constitutes a personal obligation fully binding in every age.26<i class="footnote">This distinction seems to be implicit in the comments of <i>Pe’at he-Shulḥan</i> 1:3. Cf., however, R. Sha’ul Israeli, <i>Ereẓ Ḥemdah,</i> p. 13.</i>
  Military activity for the conquest of sacred territory is precluded not only by virtue of the "three oaths" but also because, in our day, the halakhic prerequisites of war cannot be satisfied. Although war as a means of self-defense is sanctioned by Halakhah, a war of aggression, even for purposes of restoring Jewish sovereignty over the Land of Israel is not. With the exception of a <i>milḥemet mizvah</i> or obligatory war mandated by Divine commandment, no war may be undertaken other than at the behest of a king with the prior approval of the Sanhedrin and even then, only upon consultation of the <i>urim ve-tumim.</i> In our era, all three elements are obviously lacking. It may, however, be the case that a monarch, in the literal sense of the term, is not required for this purpose. Ramban, in his commentary on Rambam's <i>Sefer ha-Mizvot, mizvot lo ta'aseh,</i> addenda, no. 17, declares that the requirement of a king for purposes of waging war does not necessarily entail the presence of a monarch but may be satisfied in the person of "a king, a judge, or whosoever exercises authority over the people," i.e., whichever person or body exercises sovereign authority over the populace.27<i class="footnote">See also R. Abraham I. Kook, <i>Mishpat Kohen,</i> no. 144, sec. 15; R. Eliezer Judah Waldenberg, <i>Hilkhot Medinah,</i> I, no. 3, chap. 5 and <i>Ziẓ Eli‘ezer,</i> X, no. 1, chap. 3, sec. 14; R. Shlomoh Goren, <i>Torat ha-Mo‘adim,</i> p. 623; and R. Benjamin Rabinowitz-Teumim, <i>Moriah,</i> Tevet 5735. Rabbi Waldenberg maintains that this is also the opinion of R. Ya‘akov Emden, <i>Mor u-Keẓi‘ah</i> 306. Cf., however, R. Aaron Soloveichik, <i>Torah she-be-‘al Peh,</i> XVI (5734), 89, who, in a somewhat different context, maintains that according to Rambam a monarch is an absolute requirement for declaration of war. A similar statement is made by <i>Mishpat Kohen,</i> no. 145. It appears to this writer that a close reading of the concluding section of Rambam’s introduction to his <i>Sefer ha-Miẓvot, shoresh</i> 14, indicates that this is indeed Rambam’s position. See also Mabit, <i>Hilkhot Terumot,</i> chap. 8, who maintains that a king was necessary only for the efficacy of the original sanctification of <i>Ereẓ Yisra’el,</i> but is not necessary for subsequent sanctification.</i> Similarly, some contemporary authorities argue that the requirement for approval of the Sanhedrin is also not absolute in nature. They maintain that a Sanhedrin is necessary only for purposes of coercion, i.e., compelling the populace to go to battle against its desire. If, however, the people, of its own accord, acquiesces in the decision to declare war there is no need for approval of the Sanhedrin.28<i class="footnote">See R. Judah Gershuni, <i>Torah she-be-‘al Peh,</i> XIII (5731), 149-50; idem, <i>Or ha-Mizraḥ,</i> Tevet 5731; and R. Sha’ul Israeli, <i>Amud ha-Yemini,</i> no. 14 and no. 15, chap. 5, sec. 6.</i> Nevertheless, there is no gainsaying the fact, that the <i>urim ve-tumim</i> are required for purposes of engaging in war.29<i class="footnote">See Rambam, <i>Sefer ha-Miẓvot, shoresh</i> 14, and Ramban, commentary on <i>Sefer ha-Miẓvot, miẓvot lo ta‘aseh,</i> addenda, no. 17; see also R. Judah Gershuni, <i>Torah she-be-‘al Peh,</i> XIII (5731). Cf., however, R. Yechiel Michal Epstein, <i>Arukh ha-Shulḥan he-Atid, Hilkhot Sanhedrin</i> 74:7, who states that “perhaps” consultation of the <i>urim ve-tumim</i> is not an absolute condition; cf., also, R. Shlomoh Yosef Zevin, <i>Le-Or ha-Halakhah</i> (Tel Aviv, 5717), p. 12.</i> Hence, in our day, there is no possibility of waging a war of aggression for purposes of reclaiming <i>Erez Yisra'el</i> without violating the strictures of Halakhah.
  Indeed, even if such an obligation were to exist in our day, that obligation would be severely limited in nature. <i>Minḥat Hinnukh,</i> no. 425, raises an obvious question. All commandments, with the exception of the prohibitions against homicide, idolatry and certain sexual offenses, are suspended for the purpose of saving a life. Actions which otherwise would be prohibited are permissible, and indeed mandatory, in the event that there exists even a remote chance that a life may be saved as a result of their performance. Obligations which are otherwise mandated are suspended in face of even possible danger to life. Failure to wage an obligatory war is not enumerated as one of the cardinal sins demanding martyrdom rather than transgression. How, then, can the Torah command us to wage war? Yet war for the conquest of <i>Erez Yisra'el</i> as well as for the eradication of Amalek is a mandatory duty. Warfare obviously presents the possibility of casualties and, even in the most favorable of circumstances, poses a threat to life. The scriptural phrase "<i>va-ḥai ba-hem</i>—and he shall live by them." (Lev. 18:5) is understood by the Sages as suspending the yoke of the commandments when fulfillment might mean that the person so obligated might "die by them" rather than "live by them."30<i class="footnote"><i>Yoma</i> 85b.</i> <i>Minḥat Hinnukh</i> resolves the problem by explaining that the commandments concerning war are unique. Warfare, by virtue of its nature, demands that a participant's life be placed in danger. Hence, in this case, the nature of the <i>mizvah</i> requires that one place one's life in danger. Since that is the very essence of the obligation, the <i>mizvah</i> cannot be suspended in face of possible danger.
  Nevertheless, it is only reasonable to suppose that there exist certain limitations with regard to the nature of the risk which must be accepted. It may not be necessary to place one's life in danger under any and all circumstances. While acceptance of the danger inherent in a battlefield situation may be mandatory, a clear distinction must be drawn between acceptable risks and risks which are tantamount to a suicide mission. The obligation to participate in obligatory wars may not require an individual to place himself in a situation in which it is a certainty that his life will be forfeit. Moreover, it is reasonable to assume that the obligation to wage war is an obligation to engage in battle only when the anticipated gain is commensurate with the loss which may reasonably be anticipated.31<i class="footnote">Rabbi Aaronberg, <i>Shanah be-Shanah,</i> 5730, p. 140, concedes that there is no obligation to engage in military activity in order to secure or to defend territory if there are grounds to fear that defeat would result in the loss of additional territory.</i> Thus, in the days of the Sages, religious authorities were not prepared to do battle to the last person for the defense of <i>Erez Yisra'el.</i> R. Yoḥanan ben Zakkai was quite willing to sue for peace with the Romans in order to prevent the shedding of yet more Jewish blood. He adopted this stance despite the obvious <i>mizvah</i> involved in defending the territory of the Land of Israel against aggressors. The reason seems to be quite obvious. The defenders of Jerusalem were, at the time, battling against overwhelming odds. In the absence of any rational prospect of success, there exists no obligation to engage in war except, of course, in response to a direct and specific divine decree. R. Yoḥanan ben Zakkai perceived that the risk of continued warfare was too great. Perseverance against overwhelming odds might well have spelled the total annihilation of the community of Israel.
  The obligation with regard to participation in an obligatory war is not to be equated with the obligation to sanctify the Divine Name. Persons called upon to commit a transgression publicly in response to a demand for renunciation of Jewish teaching and practice are under obligation to accept martyrdom no matter how many people may be involved.32<i class="footnote">See <i>Rambam, Hilkhot Yesodei ha-Torah</i> 5:1.</i> Under such circumstances, there exists an obligation to sanctify the Divine Name even if this would require martyrdom for all of Israel.
  There are no grounds for positing a similar requirement with regard to the fulfillment of the obligation involved in waging a mandatory war. War, even when obligatory, is presumably to be undertaken in accordance with the usual procedures and risks of warfare. However, in a situation in which a military campaign must be waged against overwhelming odds without any reasonable expectation of success, purposeless sacrifice of life is not demanded. War cannot be equated with sanctification of the Divine Name. The latter is an end in itself; the former is a means, not an end.
  Insofar as the personal or individual obligation with regard to dwelling in the Land of Israel is concerned, even according to the opinion of Ramban, no individual is required to place his life in jeopardy in order to fulfill this precept. The <i>mizvah</i> concerning settlement in the Land of Israel which devolves upon the individual, as distinct from the communal obligation with regard to conquest of the Land, demands no more of the individual than does the fulfillment of any other commandment. A person is relieved of his obligation with regard to performance of <i>mizvot</i> if such performance necessitates placing his life in danger. This principle applies to fulfillment of the obligation concerning dwelling in the Land of Israel as is evident from the ruling recorded in Shulḥan Arukh, Even haEzer 75:5. A husband may compel his wife to join him in establishing residence in <i>Erez Yisra'el</i>. A wife may likewise compel her husband to accompany her in <i>aliyah</i> to Israel.33<i class="footnote">Maharam of Rothenberg, cited by Rosh, <i>Ketubot</i> 13:17 and <i>Tur Shulḥan Arukh, Even ha-Ezer</i> 75, rules, however, that although the husband may always compel the wife to join him in establishing residence in <i>Ereẓ Yisra’el,</i> the wife enjoyed the right to compel the husband only until the destruction of the Temple, but may not compel him in our day. Rabbenu Tam rules that the prerogative of both husband and wife in this regard are equal at all times. <i>Baḥ</i> explains Maharam of Rothenberg’s position as being based upon pragmatic considerations: During the period of the exile subsequent to the destruction of the Temple it is difficult to earn a livelihood in <i>Ereẓ Yisra’el.</i> Since the husband bears responsibility for the sustenance of his wife and family, the wife is not empowered to compel him to remove their place of domicile to <i>Ereẓ Yisra’el</i> where it may prove difficult for him to discharge this obligation. The husband may, however, at his own discretion, assume the added hardship of supporting his wife in the Land of Israel and hence may compel his wife to accompany him. However, during the time of the Temple, earning a livelihood in <i>Ereẓ Yisra’el</i> was not attended by any particular difficulty and, accordingly, the wife could compel her husband to establish residence in the Holy Land.</i> Nevertheless, <i>Shulḥan Arukh</i> rules that this provision applies only in circumstances in which travel to, and residence in, Israel does not involve danger to life. However, when danger is present, one spouse cannot force the other to accept such danger. The reason underlying this ruling is self-evident. A spouse can be compelled to establish residence in Israel only because of the <i>mizvah</i> involved in settling in the Holy Land. However, in time of danger, the <i>mizvah</i> is suspended.34<i class="footnote">See, however, R. Aaron Soloveichik, <i>Torah she-be-‘al Peh,</i> XII (5730), 41-43, who, on the basis of earlier sources, demonstrates that, in contradistinction to other <i>miẓvot,</i> an individual may, at his discretion, fulfill the <i>miẓvah</i> of settlement in the Land of Israel even in the face of danger. This is so, explains R. Soloveichik, because “and you shall inherit the land” mandates military action involving endangerment. Similarly, endangerment of self, while not required, is nevertheless permitted in fulfilling “and you shall dwell therein.”</i>
  On the basis of this analysis, there is, in our day, no obligation to wage war for conquest of <i>Erez Yisra'el</i> or for retention of sanctified territories, even according to the opinion of Ramban.35<i class="footnote">This is contrary to the position of R. Shlomoh Yosef Zevin, <i>Le-Or ha-Halakhah,</i> p. 65; R. Shlomoh Goren, <i>Maḥanayim,</i> no. 69 (Iyar 5722), pp. 14-15, reprinted in idem, <i>Torat ha-Shabbat ve-ha-Mo‘ed,</i> p. 356, and idem, <i>Maḥanayim,</i> no. 97 (5725), p. 8; R. Ephraim Weinberger, <i>Ha-Torah ve-ha-Medinah,</i> II (Iyar 5710), 99f.; R. Joshua Aaronberg, <i>Shanah be-Shanah,</i> 5730, 138-140; R. Judah Gershuni, <i>Torah she-be-‘al Peh,</i> XIII (5731), 147; and R. Raphael Katzenellenbogen, <i>No‘am,</i> XVI (5733), 51f. who maintain that according to Rambam the <i>miẓvah</i> to conquer <i>Ereẓ Yisra’el</i> by force of arms is binding even in our day. S. Z. Shragai, <i>Shanah be-Shanah,</i> 5730, p. 141, states that this was the opinion of the former Sephardic Chief Rabbi, R. Yitzchak Nissim as well. R. Katriel Tchursh, <i>Ha-Torah ve-ha-Medinah,</i> II, 97, reprinted in his <i>Keter Ephraim</i> (Tel Aviv, 5717), no. 1, sec. 6, posits the conquest of <i>Ereẓ Yisra’el</i> as a <i>milḥemet ḥovah</i> even in our day without qualifying this view as being predicted upon the position of Ramban. See also R. Ovadiah Hadaya, <i>Talpiyot,</i> vol. III, no. 3-4 (Nisan 5705), pp. 380-384.</i> Moreover, were such an obligation to exist it would not require futile military action. Thus there is no question that, at least under certain circumstances, refusal to engage in military action in order to retain the liberated territories can certainly be justified, even in accordance with the position of Ramban. Delineation of a precise set of conditions which would constitute an unacceptable and unjustifiable risk is a matter requiring military and political expertise.
  III
  However, return of liberated territories for considerations other than preservation of life raises an entirely different set of halakhic considerations. On the basis of <i>Avodah Zarah</i> 20b, <i>Rambam, Hilkhot Avodat Kokhavim</i> 10:3-4, rules that it is forbidden for a Jew to sell houses or fields in <i>Erez Yisra'el</i> to a non-Jew.36<i class="footnote">It is generally accepted that the prohibitions flowing from <i>lo teḥanem</i> apply to all non-Jews and not only to the Seven Nations. This is stated explicitly by <i>Tosafot, Avodah Zarah</i> 20a; <i>Sefer ha-Eshkol,</i> III, 123; <i>Maharam Schick al Taryag Miẓvot,</i> no. 426; and <i>Ḥazon Ish, Shevi‘it</i> 24:1 and <i>Hilkhot Avodat Kokhavim</i> 65:1.</i> In this instance, Rambam departs from his usual practice of not supplying the underlying rationale upon which the halakhah is predicated. Rambam poses the question, "And why may one not sell [houses and fields] to them? For it is written, '<i>lo teḥanem</i>'—Do not give them permanent encampment in real property, for if they will not possess real property, their residence is transient." If non-Jews are not given an opportunity to acquire real estate their presence in the Holy Land will be temporary and transient in nature. A person who does not own land, who does not own a home and who possesses neither fields nor orchards, is a person who has no roots. Such a person's domicile is inherently transitory. An individual acquires permanence and stability within a given geographic locale only when he requires property. Hence, the Torah forbids the sale of real estate in <i>Erez Yisra'el</i> to non-Jews lest through acquisition of land their domicile become permanent in nature.37<i class="footnote"><i>Ḥazon Ish, Shevi‘it</i> 24:1 and <i>Hilkhot Avodat Kokhavim</i> 65:1, opines that the ultimate rationale underlying the prohibition against sale of real property in <i>Ereẓ Yisra’el</i> to a non-Jew is identical with the reason for the prohibition against permitting idolaters to dwell in <i>Ereẓ Yisra’el.</i> In the latter case, the reason is explicitly stated in Scripture: “They shall not dwell in your land lest they cause you to sin against me” (Exodus 23:33). Both commandments, according to <i>Ḥazon Ish,</i> are akin to the commandment concerning eradication of paganism in the Land of Israel recorded in Deut. 7:5 and Deut. 12:2-3. This analysis was earlier advanced by <i>Sefer Miẓvot Gadol,</i> no. 48. Although <i>Ḥazon Ish</i>’s inference is from the terminology employed by Rambam in <i>Hilkhot Avodat Kokhavim</i> 10:3, it would seem that this thesis is more readily substantiated by Rambam’s comments in 10:4 in which he describes sale of real estate as leading to permanent residence and then, in the very same halakhah, proceeds to state, “<i>Similarly</i> it is forbidden to praise them … for this causes [Jews] to cleave to them and to learn from [their] evil deeds” (italics mine). Rambam appears to predicate both proscriptions upon the identical rationale.</i> It is the divine plan that ultimately <i>Erez Yisra'el</i> in its entirety become the exclusive inheritance of the community of Israel.
  Latter-day rabbinic decisors pose a number of questions in connection with transfer of property to non-Jews. The answers to these questions are contingent upon a definitive analysis of the nature of the prohibition of <i>lo teḥanem</i>. Is this prohibition a ban against the sale of land in the literal sense of the term, i.e., is it the act of sale, in and of itself, which is forbidden? Or does the rationale, in this instance, constitute the essence of the prohibition? Very often, even though the underlying rationale of a halakhic stricture may be readily apparent, in terms of the ramifications and application of Halakhah, the rationale plays no significant role. In its application the law is often divorced from any underlying consideration. In this case, the crucial question which must be answered is whether it is the act of sale <i>per se</i> which is forbidden or whether it is not the act of sale <i>qua</i> sale which is forbidden but rather any act which, by its nature, contributes to permanence of dwelling on the part of non-Jews. If the former is true, then sale of real estate is forbidden regardless of the implication, or lack of implication, of such sale insofar as permanence of non-Jewish residence is concerned. Although the prohibition may well be predicated upon such considerations the rationale underlying the prohibition does not affect application of the halakhah in specific situations. If, however, it is not specifically sale of real estate which is proscribed, but rather the act of bestowing permanence of residence upon non-Jews which is forbidden, there may indeed be situations in which transfer of real estate to non-Jews may be permissible.
  There are a number of concrete halakhic questions which depend upon an analysis of this issue for their resolution. For example, is it permissible to sell real estate in the Land of Israel to a non-Jew who already owns a home in the Holy Land? If the non-Jew already owns a home it may well be argued that he already enjoys <i>ḥaniyah be-karka,</i> i.e., his residence in the land is already permanent in nature. In terms of permanence of domicile it makes little difference whether a person owns one home or whether he owns a multiple number of homes. Similarly, attachment to the land exists whether a person owns one field or whether he owns many fields. It would then follow that sale of additional real estate to a non-Jew already owning property in the Land of Israel is not forbidden. If, however, sale of real estate <i>qua</i> sale is forbidden, it then follows that transfer of real estate would be prohibited even in such circumstances despite the inapplicability of the underlying rationale.38<i class="footnote">R. Zalman Shach, cited in <i>Shabbat ha-Areẓ,</i> Introduction, ch. 10, and <i>Minḥat Kohen,</i> no. 68, maintains that there is no prohibition against selling land to a non-Jew who already owns real estate in <i>Ereẓ Yisra’el.</i> See also R. Ovadiah Yosef, <i>Torah she-be-‘al Peh,</i> XV (5733), 35-37. Rabbi Kook, in citing this opinion does not view it as authoritative; <i>Ḥazon Ish, Shevi‘it</i> 24:1 and <i>Hilkhot Avodat Kokhavim</i> 65:1, emphatically rejects this contention. See also <i>Contemporary Halakhic Problems,</i> I, 27-32.</i>
  Another example is the question of whether or not it is permissible to exchange one parcel of land for another. The net result, insofar as permanence of residence is concerned, is the same. Whether the non-Jew owns plot A or plot B is of little consequence insofar as permanence of residence is concerned. However, exchange of land (<i>ḥalipin</i>) in terms of usual halakhic categories is tantamount to "sale" of one parcel and purchase of the second. If the prohibition proscribes sale <i>qua</i> sale such a transaction would be forbidden since it involves alienation of property in favor of a non-Jew.39<i class="footnote">This question was first addressed by R. Shneur Zalman of Lublin, author of <i>Teshuvot Torat Ḥesed</i> in a responsum published in R. Simchah Bamberger, <i>Zekher Simḥah,</i> no. 115. A group of German Jews had collected funds for the establishment of a Jewish hospital in Jerusalem and had purchased a building for this purpose. Non-Jewish inhabitants of the neighborhood opposed these plans and instituted legal proceedings. They also offered to purchase the building for a sum 25,000 marks higher than the original purchase price. The question posed was whether the offer might be accepted and the money used to purchase a building elsewhere. <i>Torat Ḥesed</i> answered in the negative, but counseled that they might exchange the building already purchased for a building in another neighborhood owned by a non-Jew; the non-Jew might then sell the first building to the interested gentile neighbors. Exchange, argued <i>Torat Ḥesed,</i> is permissible because the Torah does not ban an act of “sale” but rather <i>ḥaniyah be-karka</i> and permanence of settlement is not enhanced by such an exchange. This opinion is accepted by R. Zevi Pesach Frank, <i>Kerem Ẓion,</i> III, 3, and <i>Har Ẓevi, Yoreh De‘ah,</i> no. 123. <i>Ḥazon Ish,</i> in a letter addressed to R. Betzalel Zolti, expresses the opinion that exchange is forbidden since, technically, it involves an act of sale. Taking cognizance of the <i>miẓvah</i> involved in purchasing land in <i>Ereẓ Yisra’el</i> held by a non-Jew, <i>Ḥazon Ish</i> added orally, “One does not exchange <i>averot</i> for <i>miẓvot</i>.” See R. Betzalel Zolti, <i>Torah she-be-‘al Peh,</i> XI (5729), 44-45.</i>
  Sale of real estate for a limited period of time poses a question of a similar nature. Transfer of real estate for a specified time period subsequent to which it reverts to the original owner is technically a sale. Yet, since the purchaser enjoys the right of ownership for only a limited period of time, the transaction does not contribute to permanence of residence and, in that respect, should be viewed as no different from the granting of a leasehold which, while forbidden by rabbinic edict, involves no breach of the biblical prohibition.40<i class="footnote"><i>Minḥat Ḥinnukh,</i> no. 426, citing Rambam, <i>Hilkhot Mekhirah</i> 23:5, who categorizes sale for a fixed period of time as an act of alienation of property rather than as a lease, expresses doubt with regard to whether or not such sale of land in <i>Ereẓ Yisra’el</i> to a non-Jew is forbidden. <i>Yeshu‘ot Malko, Yoreh De‘ah,</i> no. 55, declares that only a sale which results in the property remaining permanently in the hands of the non-Jewish purchaser is forbidden. A sale in which the property reverts to the seller at a specified time does not constitute bestowal of permanence upon the residence of the non-Jew. It was on the basis of this consideration that a Sephardic authority, <i>Teshuvot Shemen ha-Ma’or, Yoreh De‘ah,</i> no. 4, permitted the sale of land to a non-Jew for the period of <i>shmittah.</i> That opinion was the basis of the lenient ruling of R. Yitzchak Elchanan Spector of Kovno with regard to the <i>shmittah</i> question. See R. Yosef Zevi Halevi, <i>Hora’at Sha‘ah,</i> ch. 31. See also R. Abraham I. Kook, <i>Mishpat Kohen,</i> no. 58. See also Ramban in his commentary on Rambam’s <i>Sefer ha-Miẓvot, lo ta‘aseh,</i> no. 227 and cited in <i>Sefer ha-Ḥinnukh,</i> no. 339, who regards the prohibition “The land shall not be sold in perpetuity” (Lev. 25:23) as banning sale to a non-Jew because the non-Jew will not return the property in the jubilee year. However, <i>Ḥazon Ish, Shevi‘it</i> 24:4 and <i>Hilkhot Avodat Kokhavim</i> 65:4, rules that even sale for a limited period of time is forbidden. <i>Ḥazon Ish,</i> in his rulings in all three cases, consistently maintains that it is sale <i>qua</i> sale which is forbidden; see above notes 38 and 39.</i>
  The selfsame analysis is directly relevant to the topical question of territorial concessions on the West Bank. Whether or not restoration of Arab sovereignty over portions of Judea and Samaria involves transgression of <i>lo teḥanem,</i> it may be argued, is directly contingent upon precisely the same question regarding the nature of this prohibition. It should be stressed that transfer of national sovereignty does not constitute a "sale" in the usual sense of the term. Cession of territory by one sovereign state to another does not infringe upon the property rights of the citizens of any country who may own property in the area ceded by one country to another. Essentially, national sovereignty carries with it the right to display the flag of the sovereign power, to enforce the laws of the sovereign authority, and to collect taxes, but is irrelevant to proprietary interest. Thus, transfer of political sovereignty does not constitute a "sale" in the literal sense of the term, except of course, insofar as publicly held land actually owned by the government is concerned. However, as has been cogently argued by Rabbi Betzalel Zolti, Chief Rabbi of Jerusalem, political sovereignty assuredly carries with it an element of domiciliary permanence.41<i class="footnote"><i>Torah she-be-‘al Peh,</i> XI (5729), 44-54. R. Ovadiah Hadaya, <i>No‘am,</i> XI (5729), 183-184, also declares return of liberated territory to be forbidden by virtue of <i>lo teḥanem.</i> There is a strong reason to infer that this was the position of R. Chaim Ozer Grodzinski as well. When questioned as to whether acquiescence to a partition plan for Palestine would be forbidden as a violation of <i>lo teḥanem,</i> he replied that such acquiescence was permissible and was not to be equated with granting territory to non-Jews since the land was in the jurisdiction of gentiles by virtue of conquest, and “the matter is not within the jurisdiction of the Jewish people so that it be said that they are granting <i>ḥaniyah be-karka</i>.” The clear inference is that cession of sovereignty with regard to territory under <i>Jewish</i> jurisdiction does constitute a violation of <i>lo teḥanem.</i> See <i>Aḥi‘ezer: Koveẓ Iggerot,</i> ed. Aaron Sorasky (Bnei Brak, 5730), I, no. 61.</i> There is no question that if a certain geographic area is under the rule and administration of a Jewish government, the permanence of Jewish inhabitance is enhanced and that the reverse is the case when the administration and the political authority is vested in a non-Jewish government. Thus, although restoration of Arab sovereignty does not constitute a violation of <i>lo teḥanem</i> if that prohibition is understood as a ban solely against "sale" of real estate to non-Jews, it does constitute such a violation if understood as a general ban against any action which serves to enhance the permanence of non-Jewish domicile.42<i class="footnote">It has been suggested that transfer or return of territory to Arab sovereignty is tantamount to permitting unrestricted immigration of non-Jews to such areas and hence constitutes a violation of “They shall not dwell in your land” (Exodus 23:33). See R. Abraham Weingart, <i>Ha-Ma‘ayan,</i> Tammuz 5738, p. 15. However, the applicability of this prohibition is not as clear as is the applicability of <i>lo teḥanem.</i> Although Rambam, <i>Hilkhot Avodat Kokhavim</i> 10:6, rules that this prohibition encompasses all non-Jews, Rabad disagrees and expresses the view that it is limited to members of the Seven Nations who inhabited the area at the time of the original conquest. Rabad expresses no such disagreement with regard to <i>lo teḥanem.</i> Moreover, <i>Minḥat Ḥinnukh,</i> no. 94, states that “it is possible” that the <i>miẓvah</i> does not require displacement of a non-Jew from land which he has purchased. However, <i>Ḥazon Ish, Shevi‘it</i> 24:1 and <i>Hilkhot Avodat Kokhavim</i> 65:1, state that sale of land to a non-Jew constitutes a violation of “They shall not dwell in your land” as well as a violation of <i>lo teḥanem.</i></i>
  These comments are of course predicated upon the assumption that return of territory within a disputed area will not require any Jew to divest himself of title to land acquired. Alienation of real estate within the boundaries of the Land of Israel in favor of a non-Jew would obviously constitute a violation of <i>lo teḥanem.</i>
  It should be clearly established within the political framework of any peace settlement that Jews would enjoy the right to own land in any portion of <i>Erez Yisra'el</i> whether or not the territory in question is within the political domain of a Jewish state. A Jew must be permitted to own land on the West Bank or even in Jordan itself, just as Arabs may, and do, own land within the boundaries of the State of Israel. Israel has made no attempt to interfere with the right of Arabs to own property within its borders. It should be equally clear that no Jew be required to abandon his property simply because it is located in an area to be returned to Arab sovereignty. Hence the question of actual sale of real estate should not arise in the context of current diplomatic negotiations. The sole question to be resolved is whether or not political sovereignty may be transferred without violation of a biblical prohibition. According to the numerous authorities who maintain that the prohibition against transfer of real property to non-Jews does not encompass every sale of property, but extends only to such sales which serve to enhance permanence of dwelling, it would appear that any action which accomplishes this result would be forbidden, even if the action in question does not involve an actual "sale" of real estate. Hence, according to these authorities, transfer of political sovereignty would, in itself, constitute a violation of the prohibition of <i>lo teḥanem.</i>
  It must be remembered that the prohibition against granting permanence of domicile to non-Jews in the Land of Israel is in no way contingent upon the obligation concerning Jewish settlement in <i>Erez Yisra'el</i>. Even if, in our day, there exists no binding commandment with regard to establishing residence in the Land of Israel, the negative prohibition of <i>lo teḥanem</i> is eternally binding. It should again be emphasized that Rambam, despite his failure to enumerate the commandment concerning settlement in the Land of Israel as one of the 613 <i>mizvot,</i> nevertheless records the prohibition against granting non-Jews permanence of dwelling as a negative prohibition. This is a consideration which cannot lightly be dismissed and must be carefully weighed in considering possible return of territory.
  It must, of course, be added that this prohibition is no different from any other and hence is suspended for purposes of preservation of life. Accordingly, if Jewish lives hang in the balance, the sale of a parcel of land or the return of territory may well be warranted. Yet in the absence of a state of danger, the prohibition remains fully in force.43<i class="footnote"><i>Yeshu’ot Malko, Yoreh De‘ah,</i> no. 65, states that since the prohibition against sale of land in Israel is derived from <i>lo teḥanem</i> which serves fundamentally to prohibit certain unrequited acts of favor, sale of land when intended primarily for the enhancement of Jewish settlement is permissible. A similar view is expressed by <i>Sho’el u-Meshiv, Mahadurah Tinyana,</i> II, no. 60, in ruling that such sale is permissible if intended primarily for benefit of the Jew. This position is categorically dismissed by <i>Ḥazon Ish, Shevi‘it</i> 24:4 and <i>Hilkhot Avodat Kokhavim</i> 65:4; and by R. Shlomoh Yosef Zevin, <i>Le-Or ha-Halakhah,</i> p. 123. See also a letter by R. Abraham David Rabinowitz-Teumim in <i>Shabbat ha-Areẓ</i> p. 128, in which he sanctions sale of land for the period of <i>shmittah,</i> but only in a manner which guarantees restoration to Jewish ownership, because otherwise “it would, Heaven forfend, be impossible that [the land] be ours [at all].” Cf., R. Ovadiah Yosef, <i>Torah she-be-‘al Peh,</i> XV (5733), 33-35.</i> Assuredly, return of territory cannot be countenanced in a situation in which the return of land may, in itself, contribute to increased danger by rendering the military situation even more precarious. There is no question that, under such circumstances, Jews do not have the right to return even the smallest piece of land within the boundaries of <i>Erez Yisra'el</i> in order to gain political or economic advantages which are not based upon considerations of security. This, in the final analysis, constitutes the most crucial element in the analysis of the problem. The issue may be reduced to the question of whether or not return of occupied territories is indeed vital for the preservation of the safety and security of the inhabitants of the Land of Israel.
  Should territorial concessions prove to be warranted and necessary they will yet be unrelated to the ultimate, divinely vouchsafed destiny of Israel. Considerations of security may mandate such concessions, but to no believing Jew will they afford occasion for rejoicing. An anecdote told of the sainted Hafez Hayyim provides a perspective which is perhaps even more valid now than at any time in the past. When news of the Balfour Declaration reached Radun, the townspeople came to the Hafez Hayyim in a state of joy and excitement. They were overjoyed that the British government had granted permission for the establishment of a Jewish homeland in <i>Erez Yisra'el.</i> But the Hafez Hayyim did not share their jubilation and expressed astonishment at their great joy. He said to them, "The British government is going to allow a few thousand Jews to immigrate to the Land of Israel and establish a Jewish settlement on a small tract of land. Is that enough? Have you forgotten that the Almighty long ago gave us a promise, '<i>u-farazta yamah va-kedmah ve-zafonah va-negbah</i>' (Genesis 28:14). We are told that Jewish settlements are going to stretch out to the west and to the east, to the north and to the south. How can we possibly be happy and satisfied with the meager concession of the British Government? How can we be satisfied with attainment of only such a small measure of that which the Almighty justly and properly owes us? '<i>Ẓion be-mishpat tipadeh</i>—Zion will be redeemed in judgment' (Isaiah 1:27). We have a claim against the Almighty. He has dispersed us in the lands of the Diaspora, but He has promised us that He will lead us out of exile. He has promised that He will lead us back to the Land of Israel and restore it to us in its entirety. Of course, we are grateful for everything which has been achieved. Every square dunam of the Land of Israel which is developed, cultivated and populated is the occasion for happiness and joy. But that is only the beginning. We are still awaiting with eager anticipation the fulfillment of the divine promise, 'Every place whereon the sole of your feet shall tread, unto you shall it be' (Deut. 11:24)."
  R. Sha'ul Israeli, <i>Erez Hemdah,</i> pp. 22 and 24-25, understands Rambam's position as being predicated upon an inseparable connection between the two facets of the precept expressed in the verse "and you shall inherit the land and dwell therein." Rambam views the <i>mizvah</i> as having lapsed because it requires only settlement predicated upon "inheritance" of the land, i.e., military conquest, as distinct from settlement contingent upon the good will of gentile nations. Conquest during the period of exile is precluded by the "three oaths"; hence the commandment concerning settlement has lapsed as well. According to this thesis the commandment concerning settlement was binding only until the destruction of the First Temple. No <i>mizvah</i> with regard to settlement existed during the period of the Second Temple, since Israel was subject to foreign political sovereignty during that period. Subsequently, however, op. cit., pp. 29-39, Rabbi Israeli opines that settlement in Israel constitutes a biblical commandment in all ages even according to Rambam.
  There have been numerous attempts to interpret Rambam's position in a manner which would have him regard settlement in the Land of Israel as a binding obligation in all ages despite its omission from his listing of <i>mizvot.</i> The primary impetus for the development of these theses is the evidence of manifold rabbinic enactments designed to encourage removal of residence from the Diaspora to Israel. These may be explained most readily if settlement in the Land of Israel is regarded as a binding <i>mizvah</i>. <i>Knesset ha-Gedolah, Yoreh De'ah</i> 239: 33, cites an earlier unpublished authority who asserts that according to Rambam settlement in the Land of Israel is mandated by rabbinic decree. This is also the view of Tashbaz as cited by <i>Teshuvot Rashbash,</i> no. 2. The identical view is independently formulated by <i>Pe'at ha-Shulḥan, Bet Yisra'el</i> 1:14.
  <i>Avnei Nezer, Yoreh De'ah,</i> II, no. 454, secs. 5-7 and no. 457, sec. 5, points to Rambam's omission of the commandment concerning construction of the ark and its cover—an omission for which Rambam was taken to task by Ramban. Despite the clear nature of the divine command to fashion such appurtenances, Rambam does not enumerate their construction as constituting separate and distinct <i>mizvot</i> because he views their construction as being subsumed under the commandment to construct the Temple. Stretching the parallelism a bit, <i>Avnei Nezer</i> argues that Rambam does not enumerate settlement in <i>Erez Yisra'el</i> as a separate <i>mizvah</i> because he regards it as subsumed under the commandment to annihilate the Seven Nations indigenous to the Land of Canaan. [For a critique of this analogy see R. Israel Zev Mintzberg, <i>Yishuv Erez Yisra'el</i> (Jerusalem, 5690), pp. 32-33.] However, subsequently, in the same responsum, secs. 23-27, <i>Avnei Nezer</i> himself queries, "But how can there be a <i>mizvah</i> in the time of exile [regarding which time] it is written in the Torah 'and the Lord … cast them into another land' (Deut. 29:27)?" <i>Avnei Nezer,</i> secs. 24-27, then develops the interesting thesis that only such persons who are deserving of redemption are commanded to dwell in <i>Erez Yisra'el.</i> Even more astonishing is <i>Avnei Nezer</i>'s further statement, sec. 26, that one who is not so deserving but who nevertheless makes <i>aliyah</i> is accounted as if he continues to reside in the Diaspora and has fulfilled no <i>mizvah</i> thereby. However, <i>Avnei Nezer,</i> secs. 39 and 62, concludes with the statement that, his own opinion notwithstanding, the position of rabbinic decisors is that settlement in Israel <i>is</i> a <i>mizvah.</i> Whether this <i>mizvah</i> is biblical or rabbinic in nature is contingent upon the conflicting talmudic views with regard to whether the biblical sanctity engendered by Ezra's settlement is eternal in nature or whether it, too, lapsed (as did Joshua's earlier sanctification) upon the destruction of the Second Temple. Nevertheless, <i>Avnei Nezer,</i> sec. 52, asserts that since subsequent to the "three oaths" there is no longer an obligation upon the entire community to settle in the Land of Israel, there can therefore be no obligation upon any individual to settle in Israel. In sec. 56 he adds that if all Jews were to be granted permission to immigrate to Israel, settlement in the Land of Israel would become obligatory provided that it be possible to settle among righteous people.
  The much earlier, fifteenth-century rabbinic authority, R. Shimon ben Ẓemaḥ Duran, <i>Teshuvot Tashbaz,</i> III, no. 288, offered an interpretation of Rambam's position quite similar to that later advanced by <i>Avnei Nezer.</i> Tashbaz declares that settlement in Israel constitutes a biblical obligation even according to Rambam. Nevertheless, Rambam does not include this obligation in his enumeration of the 613 precepts because it is a "<i>mizvah kollelet</i>," i.e., a broad, general obligation encompassing all commandments whose performance is limited to the confines of the Holy Land, e.g., <i>terumah, ma'asrot,</i> etc.
  R. Aaron Soloveichik, <i>Or ha-Mizraḥ,</i> Tevet 5730, pp. 107-108, <i>Torah she-be-'al Peh,</i> XII (5730), 43-44 and <i>Torah she-be-'al Peh,</i> XVI (5734), 88, presents yet another analysis of Rambam's position. According to his explanation settlement in Israel constitutes the fulfillment of a divine precept. Nevertheless, settlement in Israel is not mandatory and, for this reason, is not enumerated by Rambam among the 613 <i>mizvot.</i> According to Rabbi Soloveichik, Rambam maintains that the <i>mizvah</i> of settlement in Israel is <i>kiyumit</i> rather than <i>ḥiyuvit,</i> i.e., a <i>mizvah</i> which when voluntarily performed constitutes the fulfillment of a commandment but whose fulfillment does not constitute a mandatory obligation. See <i>Iggerot Mosheh</i> cited above, note 4, who interprets Ramban's position in this manner.
  There have been at least two other attempts to present Rambam's position as being in agreement with Ramban in deeming settlement in <i>Erez Yisra'el</i> to be a binding <i>mizvah</i> in all ages; neither is supported by rigorous halakhic reasoning. R. Sha'ul Israeli, <i>Erez Hemdah,</i> p. 29, cites <i>Berakhot</i> 48b which posits the expression of gratitude for the gift of <i>Erez Yisra'el</i> as an intrinsic part of Grace after the Meals. Since <i>Erez Yisra'el</i> is a divine beneficence refusal to acknowledge its nature as such is a denial of beneficence <i>(kefiat tovah).</i> Failure to settle in <i>Erez Yisra'el,</i> argues Rabbi Israeli, is tantamount to rejection of divine beneficence. Even if one were to concede that the conclusion reached by Rabbi Israeli follows from his premises it is difficult to understand how, on the basis of this argument, settlement in <i>Erez Yisra'el</i> may be described as a <i>mizvah.</i> Denial of beneficence is assuredly an ignoble trait, but one would search in vain to find it enumerated in any compilation of the 613 precepts. R. Shlomoh Goren, <i>Hovat ha-Aliyah le-Erez Yisra'el,</i> ed. Yochanan Fried (Jerusalem, 5732), p. 9, states, "This <i>mizvah</i> … according to the opinion of Rambam, is not enumerated among the 613 precepts of the Torah. However it is antecedent <i>(reshit)</i> to all <i>mizvot</i> and their <i>telos</i> (<i>mataratan</i>); all <i>mizvot</i> of the Torah are contingent upon it and it is contingent upon all [of the others]." This statement advances no argument demonstrating that Rambam regards settlement in Israel as a binding obligation.
  Attention should also be drawn to Rambam's statement in Hilkhot Melakhim 5:7 in which he declares, "And it is permissible to dwell [anywhere] in the entire world with the exception of the land of Egypt." The phraseology employed by Rambam, unqualified by any reference to Israel's exile from <i>Erez Yisra'el,</i> implies categorical permission to establish residence in any land other than Egypt.
  It appears more likely that Maharam of Rothenberg's distinction between the time of the Temple and the present era is grounded in halakhic rather than pragmatic considerations. Although there are conflicting views, it is the opinion of Maharam of Rothenberg, cited by Rosh, <i>Ketubot</i> 13:17 and <i>Tur Shulḥan Arukh</i> 75, that choice of a place of domicile is basically the husband's prerogative. He may compel his wife to move from one city to another, but the wife, in the absence of a halakhically significant consideration, cannot compel her husband to do so. Thus, if Maharam of Rothenberg is understood as agreeing with Rambam in maintaining that there is no binding obligation with regard to settlement in <i>Erez Yisra'el</i> during the present era, the distinction is readily apparent. The husband may exercise his prerogative with regard to choice of domicile in all ages. The wife may do so only during the period in which the Temple stood because during that period settlement in the Land of Israel constitutes a binding <i>mizvah.</i> She is thus compelling the husband to enable both of them to fulfill a mandatory obligation. Maharam of Rothenberg would maintain that this obligation lapsed with the destruction of the Temple, as does <i>Megillat Ester.</i> Since, subsequent to the exile, this obligation no longer exists, the wife at present lacks grounds to compel her husband to establish residence in Israel. Cf., R. Aaron Soloveichik, <i>Torah she-be-'al Peh,</i> XII (5930), 45, who explains the position of Maharam of Rothenberg in light of his own understanding of Rambam.
  In light of the "three oaths" described in <i>Ketubot</i> 111a, this position does not seem to be defensible other than with regard to a defensive war for retention of already acquired territory. The opinion of these scholars notwithstanding, the very fact that an oath not to reconquer the Land of Israel by force as well as the biblical verse "and the Lord rooted them out of their land in anger and in wrath and in great indignation and cast them into another land, as it is this day" (Deut. 29:27), certainly make it logical to assume that during the period of exile God has relieved the Jewish people from this obligation, at least insofar as conquest and retention of the land is concerned. Were an obligation predicated upon the commandment "and you shall inherit the land" still to exist with regard to retention of territory already acquired, it is difficult to comprehend the halakhic basis and justification of exacting an oath not to retake the land by force.
  Rabbi Aaronberg, ibid., pp. 142-145, further argues that war for the retention of territory already acquired is mandatory even according to Rambam on the basis of the latter's comment in his <i>Commentary on the Mishnah, Sotah</i> 8:7 and of his ruling, <i>Hilkhot Shabbat</i> 2:23, to the effect that a war against non-Jewish aggression is a <i>milḥemet mizvah.</i> Those sources, however, do not support the conclusion that territory may not be surrendered in order to avoid danger. They indicate only that when danger exists all are obliged to come to the defense of those endangered.
  Some authorities, however, draw a distinction between idolatrous gentiles and those who renounce idol worship. <i>Mizbaḥ Adamah,</i> p. 12b, cites the somewhat ambiguous statement of <i>Kaftor va-Feraḥ,</i> chap. 10, p. 28a, in declaring that it is permissible to sell real estate to Moslems who are not idolaters. [<i>Kaftor va-Feraḥ</i> is not ambiguous in permitting <i>lease</i> of real estate to Moslems.] According to this view land may be sold not only to a <i>ger toshav</i> or to a non-Jew who observes the Noachide commandments in their entirety, but even to a gentile who merely desists from idol worship. This view was earlier stated by <i>Baḥ, Hoshen Mishpat</i> 249:2, with regard to other prohibitions predicated upon <i>lo teḥanem,</i> but disputed by <i>Bet Yosef, Hoshen Mishpat</i> 249:2 and <i>Shakh, Yoreh De'ah</i> 151:18. <i>Baḥ</i>'s view is explicitly held by <i>Me'iri, Avodah Zarah</i> 20a, and appears to be held by <i>Tosafot, Yevamot</i> 23a, and by <i>Teshuvot ha-Rashba,</i> I, no. 8. R. Abraham I. Kook, <i>Mishpat Kohen,</i> nos. 58, 61 and 63; R. Yosef Zevi Halevi, <i>Hora'at Sha'ah,</i> chaps. 25-26; R. Eliyahu Klatzkin, <i>Teshuvot Imrei Shefer;</i> R. Zevi Pesach Frank, <i>Kerem Ẓion,</i> III, 13; and R. Ovadiah Yosef, <i>Torah she-be-'al Peh,</i> XV (5733), 26-29, cite this position as a contributing leniency in permitting sale of arable land to a Moslem in order to avoid the difficulties inherent in observance of <i>shmittah.</i> R. Shlomoh Yosef Zevin, <i>Le-Or ha-Halakhah,</i> p. 125, dismisses this position with the statement: "Certainly insofar as the Halakhah is concerned there is no difference between Moslems and other gentiles with regard to '<i>lo teḥanem</i>'; even those who ruled permissively [with regard to <i>shmittah</i>] stated [this] only by way of <i>snif</i> (additional but independently unauthoritative consideration) to other reasons." Indeed, Rabbi Kook, in a lengthier discussion of sale prior to <i>shmittah, Shabbat ha-Arez,</i> Introduction, chap. 12, fails to mention this consideration. This contention is similarly rejected by R. Naftali Zevi Yehudah Berlin, <i>Teshuvot Meshiv Davar,</i> II, no. 56, "<i>Kuntres Dvar ha-Shmittah</i>"; R. Ya'akov David Wilofsky (see <i>Mishpat Kohen,</i> no. 61); and <i>Hazon Ish, Shev'it</i> 24:3 and <i>Hilkhot Avodat Kokhavim</i> 65:3.
  Insistence upon sale to a Moslem rather than to a Christian follows from the position that trinitarianism is a form of <i>avodah zarah.</i> This distinction between Moslems and Christians is expressly stated by Rambam, Hilkhot Ma'akhalot Assurot 11:7. The uncensored text of the Rome and Amsterdam editions of <i>Mishneh Torah</i> concludes with the words, "<i>aval ha-nozrim ovdei kokhavim hem u-stam yeinam assur be-hana'ah</i>" rather than the more general statement in our texts. The uncensored editions also contain a paragraph in which Rambam classifies as idolaters "Edomites" who observe Sunday as a holy day. The entire section, <i>Hilkhot Avodat Kokhavim</i> 9:4, including the numerical identification is deleted in some of our texts; in others the word "<i>Kena'anim</i>" (Canaanites) has been substituted for the word "<i>Edomim</i>" (Edomites). Rambam's position is substantiated by manuscript readings of <i>Avodah Zarah</i> 6a and 7b as cited by Rabbi R. N. Rabbinovicz, <i>Dikdukkei Soferim,</i> X, 15. Similarly, the Kapah edition of Rambam's <i>Commentary on the Mishnah</i> (Jerusalem, 5728), <i>Avodah Zarah</i> 1:3, reads: "and know that the Christian nation … are all idolaters." Rambam's position is accepted as authoritative by <i>Teshuvot Hatam Sofer, Yoreh De'ah,</i> no. 131.
  The oft-cited <i>Tosafot, Sanhedrin</i> 63b and <i>Bekhorot</i> 2b, states only that one may administer an oath to a Christian even though he swears in the name of the Trinity. <i>Tosafot</i> declares that nowhere is there a prohibition against causing gentiles to "incorporate" another deity in an oath. <i>Noda bi-Yehudah Mahadurah Tinyana, Yoreh De'ah,</i> no. 148, carefully distinguishes between <i>shituf,</i> i.e., trinitarianism as a doctrine of belief and an oath in the name of the Trinity. <i>Noda bi-Yehudah</i> declares the former to be idolatry and forbidden to Jew and gentile alike. An oath in the name of a pagan god is forbidden by virtue of the commandment "and in His name shall you swear" (Deut. 10:20). This is, however, an admonition addressed only to Jews. Such an oath is not forbidden to a non-Jew since swearing an oath does not constitute an act of worship. Accordingly, rules <i>Tosafot,</i> a Jew commits no offense in causing a non-Jew to swear such an oath. See also <i>Sha'ar Efrayim,</i> no. 24; <i>Me'il Ẓedakah,</i> no. 22; <i>Teshuvot ve-Shev ha-Kohen,</i> no. 38; <i>Teshuvot Hadashot le-Rabbeinu Akiva Eger</i> (Jerusalem, 5738), addenda, pp. 164-166; <i>Pri Megadim, Yoreh De'ah, Siftei Da'at</i> 65:11 and <i>Oraḥ Hayyim, Eshel Avraham</i> 156:2; and <i>Mahazit ha-Shekel, Oraḥ Hayyim</i> 156:2. Others interpret <i>Tosafot</i> as meaning that <i>shituf</i> or trinitarianism does not constitute idolatry for Noachides. See <i>Rema, Oraḥ Hayyim</i>, 156:1; <i>Darkei Mosheh, Yoreh De'ah</i> 151; <i>Shakh, Yoreh De'ah</i> 151:1 and 151:7; <i>Derishah</i> and <i>Baḥ, Hoshen Mishpat</i> 182; <i>Teshuvot Havot Ya'ir,</i> no. 1 and no. 185; R. Ya'akov Emden, <i>Mor u-Kezi'ah</i> 224; <i>Mishnat Hakhamim, Hilkhot Yesodei ha-Torah;</i> Rabbi Z. Boskowitz, <i>Seder Mishnah, Hilkhot Yesodei ha-Torah</i> and <i>Shoshan Edut</i> (commentary on <i>Eduyot</i>), p. 188; <i>Teshuvot ve-Shev ha-Kohen,</i> no. 38; Rabbi A. Vermeiz, <i>Me'orei Or,</i> IV, 8a and 13a and V, 111b; <i>Revid ha-Zahav, Parshat Yitro; Yad Sha'ul; Yoreh De'ah</i> 151; <i>Teshuvot Sho'el u-Meshiv, Mahadurah Tinyana,</i> I, no. 26 and no. 51; R. Zevi Hirsch Chajes, <i>Kol Sifrei Maharaz Hayes</i> I, 489-490; <i>Ha-Ketav ve-ha-Kabbalah,</i> Deuteronomy 4:19; and <i>Pitḥei Teshuvah, Yoreh De'ah,</i> 147:2. The one early authority who unequivocally rules that Christians are not idolaters is <i>Me'iri.</i> See <i>Bet ha-Beḥirah, Avodah Zarah,</i> ed. Abraham Sofer (Jerusalem, 5725) passim, particularly pp. 4, 28 and 46. See also R. David Zevi Hoffmann, <i>Der Shulchan Aruch und die Rabbinen über das Verhältnis der Juden zu Andersgläubigen</i> (Berlin, 1885), pp. 4-7.
  Rambam, <i>Hilkhot Avodat Kokhavim</i> 10:6 rules that a <i>ger toshav,</i> i.e., a non-Jew who has formally obligated himself to observe the seven Noachide commandments, need not be expelled from <i>Erez Yisra'el</i> by virtue of the commandment, "They shall not dwell in your land." He notes, however, that, as a matter of law, the institution of <i>ger toshav</i> lapsed with the destruction of the Temple. Rabad, however, rules that a non-Jew who in fact observes the Noachide commandments may be permitted residence in <i>Erez Yisra'el</i> even in the absence of formal acceptance of the obligations of a <i>ger toshav</i>. <i>Kesef Mishneh</i> comments that this position is a logical one since the prohibition against such residence rests upon the fear that "they cause you to sin against me." This consideration does not pertain in the case of a non-Jew who observes the Noachide laws. Accordingly, <i>Kesef Mishneh</i> is of the opinion that Rambam would not dispute this ruling of Rabad. However, <i>Minḥat Hinnukh,</i> no. 94 and <i>Hazon Ish, Hilkhot Avodat Kokhavim</i> 65:3 and <i>Shevi'it</i> 24:3, declare that in the absence of formal acceptance of the status of the <i>ger toshav</i> the prohibition against residence in <i>Erez Yisra'el</i> remains effective. This position appears to be explicit in Rambam's definition of <i>ger toshav, Hilkhot Issurei Bi'ah</i> 14:7. Thus, according to the latter authorities, since a gentile cannot be accepted as a <i>ger toshav</i> in our day, whether or not a non-Jew who observes the Noachide commandments may be permitted to reside in Israel is a subject of controversy between Rambam and Rabad.
  <i>Hazon Ish, Shevi'it</i> 24:2 and <i>Hilkhot Avodat Kokhavim</i> 65:2 states that the prohibition against selling real estate to a non-Jew does not extend to a <i>ger toshav,</i> just as the prohibition against permitting a non-Jew to reside in <i>Erez Yisra'el</i> does not extend to a <i>ger toshav.</i> [This may also be inferred from <i>Maggid Mishneh, Hilkhot Issurei Bi'ah</i> 14:10; see also R. Abraham I. Kook, <i>Mishpat Kohen,</i> no. 63, who records the opposing view of R. Ya'akov David Wilofsky, and himself states that sale to a <i>ger toshav</i> is permissible.] Moreover, <i>Hazon Ish</i> declares, it follows that, according to Rabad, the prohibition does not extend to a non-Jew who observes the Noachide laws even if he has not formally accepted the obligations of a <i>ger toshav.</i> This conclusion is virtually inescapable if it is antecedently assumed that sale of real estate is forbidden, as is residence of a non-Jew, by virtue of the rationale "lest he cause you to sin against me." Thus it might well be argued that, according to Rabad, sale of real estate to Moslems does not constitute a violation of <i>lo teḥanem</i> since Islam is monotheistic and its adherents observe the Noachide commandments. [See Rambam, Hilkhot Ma'akhalot Assurot 11:7 and <i>Teshuvot ha-Rambam,</i> ed. Abraham Chaim Freimann, no. 369 and no. 382.] <i>Hazon Ish,</i> however, emphatically rejects this argument. Acceptance of the seven Noachide commandments must be predicated upon acceptance of revelation at Mt. Sinai as clearly indicated by Rambam, Hilkhot Melakhim 8:11. This, says <i>Hazon Ish,</i> must be accompanied by acknowledgment of the binding nature of the 613 <i>mizvot</i> upon Jews and of all that flows therefrom. Those conditions are clearly not fulfilled by any non-Jewish faith community. See also R. Joshua Aaronberg, <i>Shanah be-Shanah,</i> 5730, p. 143.
  
  Chapter X Entebbe
  
  <i>Said Hadrian to R. Joshua: "How great is the ewe which survives among seventy wolves." Said [R. Joshua to Hadrian]: "How great is the Shepherd who rescues and preserves her and destroys them before her."</i>
  TANHUMA, TOLDOT 5
  The Rescue Operation
  The dazzling rescue by the Israeli Defense Forces of the hostages held in Entebbe following the hijacking of an Air France jet airliner by terrorists in the summer of 1976 earned widespread acclaim. The propriety of this action in accordance with the conventions of international law is analyzed by Malcolm Shaw in the premier volume of <i>The Jewish Law Annual,</i> edited by Bernard S. Jackson (Leiden: A. J. Brill, 1978), pp. 232-239. There has also been considerable discussion of halakhic issues raised by the rescue operation. The question of the halakhic propriety of the Israeli government's policy of adamant refusal to free captured guerillas in exchange for release of hostages was raised in the aftermath of a similar incident in the autumn of 1970.1<i class="footnote">See <i>Contemporary Halakhic Problems,</i> I, 18-20. This topic is also discussed by R. Sha’ul Israeli, <i>Shevilin,</i> no. 29-30, Tevet 5737.</i> The Entebbe operation posed the additional question of endangering the lives of the members of the commando unit in their endeavor to rescue the hostages. These questions are discussed by Rabbi Ovadiah Yosef in a wide-ranging article which appears in the 5737 issue of <i>Torah she-be-'al Peh.</i>
  In his discussion Rabbi Yosef presents a thorough review of sources dealing with an individual's obligation to jeopardize his life in order to save the life of another. Earlier discussions of this question appear in Rabbi Shlomoh Yosef Zevin's <i>Le-Or ha-Halakhah,</i> pp. 14-18, as well as in <i>Minḥat Yizḥak,</i> VI, no. 103, and in <i>Ẓiz Eli'ezer,</i> IX, no. 45 and X, no. 25, chaps. 7 and 18. The latter two discussions are within the context of the broader question of organ donation for transplant surgery. This portion of Rabbi Yosef's discussion also appears in an article on kidney transplants in volume 7 (5737) of <i>Diné Israel,</i> an annual published by the Faculty of Law of Tel Aviv University.
  The question of whether or not one must risk one's life in order to save the life of another is the subject of considerable disagreement. R. Joseph Karo, <i>Kesef Mishneh, Hilkhot Rozeaḥ</i> 1:14, and <i>Bet Yosef, Hoshen Mishpat</i> 426, cites <i>Hagahot Maimuniyot</i> who, in turn, bases himself upon a statement found in the Palestinian Talmud and declares that one is indeed obligated to assume such a risk. <i>Bet Yosef</i> explains that if the impending loss of life is certain, while the danger to the would-be rescuer is doubtful, the "certainty" of one's fellow takes precedence over the "doubtful" loss of one's own life. On the other hand, <i>Issur ve-Hetter</i> 59:38 declares that no person is obligated to place himself at risk in order to save the life of another. <i>Sema, Hoshen Mishpat</i> 426:2, notes that no such obligation is recorded by any early authority. A similar ruling was issued by R. David ibn Zimra, <i>Teshuvot Radbaz,</i> III, no. 625. The question submitted to Radbaz involved a situation in which a feudal despot demanded of a Jew that he permit one of his limbs to be cut off and threatened that, should permission to do so not be forthcoming, a fellow Jew would be put to death. Radbaz answered2<i class="footnote">This is in opposition to the view of <i>Teshuvot Maharam Recanati,</i> no. 480.</i> that compliance with this cruel request would constitute an act of piety, but that there exists no obligation to do so, particularly since the amputation of a limb may lead to death. In situations where there exists a significant hazard to the life of the would-be rescuer, Radbaz speaks of one who assumes such risk as a "pious fool." In such cases the applicable consideration is, "How do you know that the blood of your fellow is sweeter than your blood?" a variation of the talmudic dictum which prohibits the taking of the life of one's fellow in order to save one's own life.
  <i>Teshuvot Yad Eliyahu,</i> no. 43, p. 48b, adduces evidence bolstering this position on the basis of <i>Tosafot</i>'s understanding of an incident recorded in <i>Niddah</i> 61a. It was rumored that certain individuals had committed an act of murder. These persons appeared before R. Tarfon and requested that he shelter them from the authorities. Although the rumor was unconfirmed, R. Tarfon refused to do so and instead instructed them to find refuge in some other manner. <i>Tosafot</i> explains that R. Tarfon was afraid that he himself would be put to death for harboring fugitives. <i>Yad Eliyahu</i> argues that since R. Tarfon refused to place his own life in danger it may be inferred that a person is not obligated to place himself at risk in order to save the life of another. However, the argument based upon this source is not at all conclusive. It is quite possible that the persons in question were capable of finding refuge without endangering R. Tarfon. Moreover, it is quite possible that even had R. Tarfon hidden them, their hiding place might have been discovered, thereby causing not only their lives but also the life of R. Tarfon to be forfeit. Virtually all authorities agree that there is no obligation to place oneself at risk unless it is certain that preservation of the life of another is assured thereby.3<i class="footnote">See, however, <i>Teshuvot Ḥavot Ya’ir,</i> no. 146.</i> Furthermore, R. Naftali Zevi Yehudah Berlin, <i>Ha'amek She'elah</i> 129:2, argues that, on the contrary, <i>Niddah</i> 61a serves as evidence for the opposing view of <i>Hagahot Maimuniyot. Ha'amek She'elah</i> argues that R. Tarfon acted as he did only because there existed genuine doubt with regard to the culpability of those who sought his assistance. Had it been certain that they were guiltless, argues <i>Ha'amek She'elah,</i> R. Tarfon would have been duty-bound to assume the hazards involved in providing them with shelter.
  Among the factors militating against release of terrorists under any conditions is the fear that upon their release they are likely to resume their nefarious activities and thereby endanger the lives of others. Nevertheless, Rabbi Yosef argues that since, according to <i>Hagahot Maimuniyot,</i> a person must place himself at risk in order to prevent the <i>certain</i> death of his fellow, it would be permissible to free terrorists in exchange for the lives of hostages. The danger to the hostages who face imminent execution is certain and immediate, while the danger to others as a result of the release of guerillas is merely doubtful. Moreover, argues Rabbi Yosef, even those who dispute the position of <i>Hagahot Maimuniyot</i> do so on the basis of the fact that a person may justifiably give consideration to his own safety over that of others. A third party, however, whose own person is not at risk, when confronted by certain danger to one individual and merely possible danger to other individuals, is not at all in an analogous situation. Since his obligation to both is equal he must act to eliminate the certain and immediate danger. This course of action is mandated by the principle that the "certain" takes precedence over the "doubtful."
  A similar case is discussed by <i>Teshuvot Maharibal,</i> II, no. 20. A person was unjustly held for execution by a feudal despot. It was within the power of a friend to secure his release but the friend had reason to fear that a third person would be seized and executed in place of the released prisoner. <i>Teshuvot Maharibal</i> rules that if the execution of another person is deemed a certainty, a third party is forbidden to intervene. However, if it is possible that the wrath of the authorities will subside and no one will be executed in place of the released victim, elimination of the certain and immediate danger to the designated victim takes precedence over the possible danger to others.
  Rabbi Yosef cites <i>Tal Orot</i> 16b who finds a source for this ruling in the commentary of Rashi on the verse, "Send the lad with me and we will arise and go that we may live and not die" (Genesis 43:8). Rashi depicts Judah as arguing, "As for Benjamin it is doubtful whether he will be seized or whether he will not be seized, but for us, we shall certainly all die of hunger if we do not go. It is better that you shall set aside that which is doubtful and grasp that which is certain." However, upon closer scrutiny, it is readily apparent that Rashi's comments are not at all germane to the case at hand. Placing the life of Benjamin in jeopardy in compliance with Joseph's demand does not serve as a paradigm establishing a normative principle for a third party who must weigh the danger his actions may cause to others. Nor, in the biblical narrative, does Benjamin place himself in danger solely on behalf of others. On the contrary, failure to appear before Joseph would mean that not only will the family fail to secure food, but that Benjamin himself will die of hunger. Accordingly, Rashi depicts Judah as advancing the compelling argument that even insofar as Benjamin himself is concerned, appearing before Joseph constitutes a lesser danger.
  Rabbi Yosef also ignores the fact that the release of terrorists in order to save the lives of hostages is not the act of a third party who is himself free of danger. The government officials and the citizens of the State of Israel who must release the imprisoned guerillas are themselves among the potential victims of possible terrorist activity. Hence, according to the vast majority of authorities who dispute the position of <i>Hagahot Maimuniyot,</i> there is no obligation for them, on these grounds, to assume additional risks in order to prevent the execution of hostages.
  It should, however, be stressed that a person is exempt from coming to the aid of his fellow only when such intervention poses a significant risk to himself. When, however, the risk to himself is minimal he is obligated to do so. This point is made by R. David ibn Zimra himself in another responsum, <i>Teshuvot Radbaz,</i> II, no. 217. The Gemara, <i>Sanhedrin</i> 73a, obligates a person to render assistance to the individual whose life is endangered and enumerates as examples specific circumstances including those of a person drowning in a river, being attacked by armed bandits or mauled by a wild beast. Each of these examples involves at least minimal danger to the rescuer. The obligation to render assistance in cases of minimal danger to oneself is clear. The matter is best summed up in the words of Rabbi Yechiel Michal Epstein in the early twentieth-century compendium <i>Arukh ha-Shulḥan, Hoshen Mishpat</i> 426:4, who writes, "However, everything depends upon the circumstances; it is necessary to weigh the matter on a scale and not to safeguard oneself more than necessary."4<i class="footnote">See also <i>Pitḥei Teshuvah, Ḥoshen Mishpat</i> 426:2; <i>Ẓiẓ Eli‘ezer,</i> IX, no. 45, chap. 4; and <i>Mishnah Berurah</i> 329:19. See also R. Iser Yehudah Unterman, <i>Shevet me-Yehudah,</i> pp. 19-23, who opines that a person is obliged to place himself at risk in order to save the life of his fellow if assumption of such a risk would not deter a prudent individual from acting in order to save his own precious material possessions.</i>
  Rabbi Yosef finds justification for military action in rescuing the hostages on the basis of a declaration of the Gemara, <i>Eruvin</i> 45a. The Gemara states that an invading army seeking to seize a city near the nation's border may be resisted even on <i>Shabbat</i> despite the absence of an imminent threat to life. The reason is quite simple. Conquest of border strongholds facilitates further military activity by the enemy which, in turn, may readily result in loss of lives. Rambam, <i>Hilkhot Shabbat</i> 2:33, rules that all Jews who are capable of doing so are obligated to aid their fellow Jews in the beseiged city. Rabbi Yosef argues that, quite apart from the danger to the hostages, seizure of the airliner constitutes an act of aggression. Were the hijackers to be allowed to succeed it is quite possible that their initial success would spur them to further acts of aggression with resultant loss of life. Therefore, concludes Rabbi Yosef, the initial effort may, if militarily advisable, be resisted even on <i>Shabbat.</i>
  Miracles and Blessings
  The phenomenal rescue by Israeli commandos of hostages held by terrorists at the Entebbe airport was greeted by waves of joy and exuberance. The operation was widely heralded as a meticulously planned and miraculously executed tactical feat. Jews, in particular, saw in the success of the operation the handiwork of divine providence.
  Yet, in some limited circles, the Entebbe operation was seen in a completely different light. Some persons influenced by <i>Neturei Karta</i> ideology denied that soldiers of a secularist Jewish state could possibly be agents of divine providence. The Central Rabbinical Congress, known as the <i>Hitaḥdut ha-Rabbanim,</i> issued a formal declaration dated 15 Ab 5736 expressing criticism of the operation and of the acclaim showered upon the Israeli forces. This statement has been widely, although probably erroneously, understood as implying that in this and similar situations it is forbidden to organize rescue missions which utilize the services of those who deny providence but rather proclaim that their success is achieved by virtue of their own prowess through "my own power and the strength of my hand." The text of this statement was published in the weekly newspaper which serves as the organ of the Satmar community, <i>Der Yid,</i> Aug. 20, 1976.
  In response Rabbi Menachem Mendel Schneerson, the Lubavitcher <i>Rebbe,</i> pointed out that, if understood in this manner, this <i>psak</i> would lead to the absurd conclusion that it is forbidden to avail oneself of the medical ministration of a physician who is a non-believer. Rabbi Schneerson, noting that further hijackings remain a distinct possibility, issued a call to all rabbinic authorities to state their position with regard to this matter so that the Torah community might know how to react in the future. Subsequently, the Yiddish-reading public was treated to the bizarre spectacle of rabbinic <i>piskei din</i> appearing, apparently as paid advertisements, in successive issues of <i>Der Algemeiner Journal</i> dated November 5, November 12 and November 26, 1976.
  The ideological aspects of this matter are beyond the scope of this discussion. The rabbinic opinions which have appeared do, however, raise one issue which involves a purely technical question of Halakhah, having nothing at all to do with the theological question of whether or not secularists may be employed as agents through whom providential guardianship is exercised. Each of the published rabbinic opinions not only confirms Rabbi Schneerson's position but states that in the event that any of the rescued hostages should ever return to the Entebbe airport where the rescue occurred that person is obligated to pronounce the benediction "Blessed is He who performed a miracle on my behalf at this place." A similar blessing, "Blessed is He who performed a miracle, on behalf of my father in this place," must also be recited by children of those hostages who visit the site of their parents' deliverance. It appears to this writer that the question of the necessity and, indeed, the permissibility, of pronouncing such a benediction is far from a settled issue.
  The formula of the blessing "who has performed a miracle on my behalf" indicates that only an event which is miraculous in nature occasions such a benediction. A blessing pronounced other than in the context decreed by Jewish law constitutes a <i>brakhah le-vatalah</i>—an impermissible invocation of the Divine Name. Providential deliverance from danger does occasion a <i>birkat ha-gomel,</i> a blessing of thanksgiving upon such deliverance. The blessing "who has bestowed upon me all manner of beneficence," is pronounced on a single occasion following deliverance from danger, but is not associated with the site of deliverance and is not repeated each time one visits the site of former danger. It is only a miraculous deliverance which occasions repeated blessings at the time of each subsequent return to the site of the miracle.
  The crucial question is this: How is the term "miracle" to be defined? The notion of a miracle, insofar as halakhic ramifications of such phenomena are concerned, is discussed by Rabbi Zevi Hirsch Chajes in his <i>Darkei Mosheh,</i> published in <i>Kol Sifrei Maharaz Hayes</i> (Jerusalem 5718), I, 460-461. In this work, Rabbi Chajes is concerned with the conditions requiring the promulgation of the recitation of <i>hallel</i> as a commemoration of divine beneficence. Rabbi Chajes declares that <i>hallel</i> which is ordained for this purpose must commemorate a miracle performed on behalf of the entire community of Israel and further defines a miracle as an act involving the suspension of causal laws governing the natural order. Events that occur in accordance with the laws of nature, no matter how fortuitous they may be, are not miraculous; a miracle, by definition, involves a change in "the order of creation."
  As evidence that <i>hallel</i> is ordained to commemorate only a miraculous beneficence, Rabbi Chajes cites the discussion recounted in the Gemara, <i>Shabbat</i> 22b, concerning the <i>hallel</i> of Chanukkah. The Gemara queries, "What is Chanukkah?" and proceeds to narrate the historical miracle of the cruse of oil. The narrative concludes with the statement that the eight-day period of Chanukkah was subsequently ordained as a period of <i>hallel</i> and thanksgiving in commemoration of this wonder. Conspicuously absent in this discussion is any reference to the glorious military victory of the Hasmoneans over the Greek forces which vastly outnumbered them. Rashi, obviously seeking to explain this glaring omission, comments that the query, "What is Chanukkah?" must be understood as meaning "[In commemoration] of which miracle was it ordained?" The ensuing discussion must then be understood as establishing a halakhic justification for the recitation of <i>hallel.</i> It is thus apparent from the discussion that it is the miracle of the oil which justifies commemorative recitation of <i>hallel,</i> whereas the miracle of the military victory does not. The reason, explains <i>Maharaz Hayes,</i> is that the military victory, amazing as it was, was achieved entirely in accordance with the laws of nature and did not in any way involve a suspension of the "order of creation." In contradistinction, the miracle of the cruse of oil clearly did involve a suspension of the natural order.
  The implication of this thesis with regard to the question of recitation of <i>hallel</i> on <i>Yom ha-Azma'ut</i> is obvious. Rabbi Moshe Zevi Neriah, in an article which appeared in <i>Ha-Torah ve-ha-Medinah,</i> V, 228-240, and was reprinted by Nahum Rakover, <i>Hilkhot Yom ha-Azma'ut ve-Yom Yerushalayim,</i> pp. 182-197, while stating that, because of other considerations, <i>hallel</i> should not be recited on <i>Yom ha-Azma'ut,</i> nevertheless argues that the definition of the term "miracle" advanced by <i>Maharaz Hayes</i> is too restrictive, particularly insofar as the recitation of <i>hallel</i> is concerned. Among the questions which he raises is the propriety of the recitation on Purim of the blessing "who has performed miracles for our fathers in those days at this season." The events recorded in the Book of Esther, argues Rabbi Neriah, while undoubtedly the product of divine guardianship and deliverance rather than fortuitous coincidence, nevertheless do not reflect a suspension of natural law.
  In point of fact, this question was raised many centuries ago by Avudraham. In his resolution of this problem, Avudraham appears to state that Ahasuerus did not exercise free will in complying with the requests of Esther and that the populace, in not fulfilling the decree to which the royal seal had been affixed ordering them to rise against the Jews, were similarly deprived of the ability to exercise freedom of will. Deprivation of free will is viewed by Avudraham as an act of intervention in the natural order and as tantamount to suspension of a fundamental law of nature.5<i class="footnote">See Rambam, <i>Shemonah Perakim</i>, chapter 8 and <i>Mishneh Torah, Hilkhot Teshuvah</i> 6:3.</i> The very fact that Avudraham poses this question demonstrates that he defined the term "miracle" in much the same manner as does <i>Maharaz Hayes</i>.6<i class="footnote">See also the commentary of <i>Ketav Sofer</i> on the Book of Esther, s.v. <i>u-le-aḥareha mai mevarekh,</i> who notes that the armed uprising of the Jews against their oppressors did not result in any casualities among the Jews. <i>Ketav Sofer</i> remarks that only divine intervention in the form of an overt miracle can explain the total absence of casualties under such circumstances.</i>
  Insofar as the blessing "who has performed a miracle on my behalf" is concerned, <i>Shulḥan Arukh, Oraḥ Hayyim</i> 218:9, records two conflicting opinions. The first view asserts that this blessing is to be pronounced only in the event of a miracle which is "<i>yozei me-minhag ha-olam</i>," i.e., an event which cannot possibly be regarded as "natural." Lest this term be misunderstood, <i>Mishnah Berurah</i> defines the phrase by means of instantiation and cites the Gemara's example of a person lost in a desert who is saved from death by miraculous gushing of water from the sand. <i>Bi'ur Halakhah</i> defined the term even more explicitly as an event which "transcends the way of nature such as the miracles [which befell] our forefathers." A second, differing view is cited by <i>Shulḥan Arukh</i> and rejected. The latter view does not require that the event involve the suspension of natural law. <i>Magen Avraham</i> 218:12, commenting on this dissenting view, questions its source and states that he could find no authority who advances such a position. He further remarks with amazement, "Certainly with regard to [that which occurs in accordance with] the custom of the world and its nature one cannot recite the blessing 'who has performed miracles on my behalf'!" Rabbi Elijah of Vilna, <i>Bi'ur ha-Gra, ad locum,</i> also refutes the dissenting view cited by <i>Shulḥan Arukh.</i> He does so by means of a <i>reductio ad absurdum:</i> It would follow that, according to this opinion, every woman who has experienced childbirth should recite this blessing upon visiting the site at which her child was delivered and that a similar blessing should be recited by her progeny throughout all subsequent generations ! These authorities all agree that providential events occurring through the medium of natural phenomena do not occasion the blessings associated with "miracles."
  It is astonishing that, with a single exception, the various <i>piskei din</i> published in <i>Der Algemeiner Journal</i> make no mention of the definitive ruling of <i>Shulḥan Arukh</i> or of later authorities regarding the definition of a miracle. Allusion to this question is made in only one statement, that issued by the late Rabbi Shlomoh Yosef Zevin and his colleagues within the <i>Habad</i> movement in Israel. It is, to be sure, unthinkable that this renowned encyclopedist would have overlooked such a significant aspect of the question. Rabbi Zevin's <i>psak din</i> contains a statement in parentheses indicating that it is signed by persons who accept as binding the opinions codified in the <i>Shulḥan Arukh ha-Rav,</i> and refers specifically to the ruling which appears in an appendix to the first volume of the <i>Shulḥan Arukh ha-Rav</i>, "<i>Seder Birkat ha-Nehenin</i>," chap. 13. (<i>Shulḥan Arukh ha-Rav</i> is a halakhic compendium authored by R. Shneur Zalman of Liadi, the founder of the Lubavitch dynasty and the <i>Habad</i> movement.) This authority rules in accordance with the second opinion recorded in <i>Shulḥan Arukh,</i> namely, the view which deems an extraordinary or fortuitous deliverance from impending disaster as constituting a "miracle." However, as noted earlier, this view is rejected by the <i>Shulḥan Arukh</i> and by other later authorities.
  With Rabbi Zevin's elucidation the matter may be placed in proper perspective. Any follower of the <i>Habad</i> movement, or one who consistently follows the opinions of <i>Shulḥan Arukh ha-Rav,</i> who may have been among the hostages in Entebbe, or whose parent or grandparent may have been among the hostages, may of course, follow the ruling of <i>Shulḥan Arukh ha-Rav</i> in this matter as well. Others would find it difficult to follow an opinion specifically rejected by the author of <i>Shulḥan Arukh</i> and by the vast majority of later authorities including <i>Magen Avraham,</i> Rabbi Elijah of Vilna and <i>Mishnah Berurah</i>.7<i class="footnote">It seems quite apparent that the events surrounding the Entebbe rescue did not involve a suspension of the laws of nature any more so than the military victory of the Maccabees. Cf., however, R. Moses Feinstein, <i>Ha-Pardes,</i> Tammuz 5739, who presumes that the events surrounding the Entebbe operation were the result of a “<i>nes galuy</i>.” It should be remembered, however, that those remarks were not made in the context of an halakhic pronouncement regarding recitation of the blessing “who has performed a miracle on my behalf” but in formulating an ideological position regarding divine intervention through, and on behalf of, non-believers and its halakhic ramifications with regard to seeking the ministrations of a non-observant physician.</i>
  There is no question that those released from Entebbe are obligated to pronounce <i>birkat ha-gomel</i> as an expression of thanksgiving for their deliverance. Among those required to recite this blessing are those who have been imprisoned and threatened with execution. The released hostages are clearly in that category.
  Rabbi Ovadiah Yosef, the Sephardic Chief Rabbi of Israel, in a contribution which appears in the Elul 5736 issue of <i>Or Torah,</i> questions whether a similar blessing may be pronounced by relatives and close friends of the hostages. <i>Bet Yosef, Oraḥ Hayyim</i> 219, cites the opinion of Rashba who maintains that the blessing may be pronounced vicariously only by a student (or son) upon the deliverance of his master (or parent) from danger, but not by other relatives or friends. Rema, Oraḥ Hayyim 219:4 disagrees, as apparently does <i>Shulḥan Arukh,</i> and rules that this blessing may be recited by any individual who genuinely shares in the feeling of exhilaration and thanksgiving.
  The late Brisker Rav found support for this opinion in the utterance of Jethro, "Blessed be the Lord, who has delivered you out of the hands of the Egyptians and out of the hands of Pharaoh, and has delivered the people from under the hand of the Egyptians" (Exodus 18:10). This declaration, remarked the Brisker Rav was tantamount to the <i>birkat ha-gomel</i> and was pronounced by Jethro upon the deliverance of Israel, a deliverance in which he himself did not personally share. Scripture carefully records, "And Jethro rejoiced for all the goodness which the Lord had done to Israel" (Exodus 18:9), indicating that the blessing can be pronounced by others not personally affected by the event only if the blessing is occasioned by genuine jubilation as demanded by Rema and as explained by <i>Taz, Oraḥ Hayyim</i> 219:3.
  However, in light of the controversy between <i>Bet Yosef</i> and Rema, Rabbi Ovadiah Yosef invokes the halakhic principle which provides that in the presence of doubt a blessing is not to be recited and rules against pronouncement of the blessing by relatives and friends of the hostages. This is also the decision of <i>Mishnah Berurah</i> 219:18.
  Nevertheless, Rabbi Yosef opines that friends and relatives may recite the <i>she-heḥiyanu</i> blessing if they have not seen the hostage for a period of thirty days. Indeed, <i>Shulḥan Arukh</i> provides that this blessing may be recited by any person who is overjoyed at seeing a friend or relative following an absence of thirty days. <i>Birkei Yosef</i> 225:3 indicates that this usage has largely lapsed in an age of rapid and efficient communications. Under such conditions "no news is good news" and the joy of being reunited after an absence is not as great as it was in earlier times. However, argues Rabbi Yosef, absence under conditions of danger such as experienced by the hostages in Entebbe certainly warrants recitation of the <i>she-heḥiyanu</i> by those who sincerely rejoice at being reunited with their loved ones.
  
  Chapter XI Circumcision
  
  <i>The Sages ordained the prayer for healing as the eighth blessing [of the Eighteen Benedictions] in recognition of circumcision which is performed on the eighth day.</i>
  SHIR HA-SHIRIM RABBAH VII, 5
  Jaundice and Circumcision
  Jaundice quite commonly appears in newborn infants between the second and fifth day following birth. Jaundice, a yellow discoloration of tissue and body fluids, is caused by the presence of bilirubin, a pigment produced primarily by the breakdown of hemoglobin. Normally, hemoglobin released from senescent red blood cells is converted into bilirubin which is then conjugated, i.e., transformed, by liver enzymes into a water soluble form and excreted in the urine. During the first days of life conjugation of bilirubin is limited because of hepatic immaturity causing delayed development of the enzyme system required for conversion of bilirubin. The result is physiologic jaundice of the newborn which is clinically evidenced by marked yellowness of the skin and eyes. Subsequent to the first week of life, the liver is usually able to conjugate larger amounts of bilirubin and the jaundice disappears without ill effect.
  The degree of jaundice can be accurately determined by measuring the amount of bilirubin in the blood. Normal bilirubin levels range between 0.25 and 0.75 mg. per 100 ml. of blood serum. The serum bilirubin of a full-term infant seldom exceeds 10 mgs. per 100 ml. at its height on the second and third days of life and usually does not exceed 7 mg. per 100 ml., although levels of serum bilirubin in a newborn infant even somewhat higher than 10 mg. per 100 ml. are not deleterious to the infant provided that the cause is normal or physiologic hepatic immaturity.1<i class="footnote">See Carl H. Smith, <i>Blood Diseases of Infancy and Childhood,</i> 3rd edition (St. Louis, 1972), p. 107.</i> Otherwise, bilirubin levels in excess of 5 mg. per 100 ml. are almost always indicative of concomitant hepatic dysfunction or other disorder of serious concern.2<i class="footnote">See <i>Smith’s Blood Diseases of Infancy and Childhood</i>, 4th edition (St. Louis, 1978), p. 253.</i> Apart from normal physiologic jaundice, elevated serum bilirubin and accompanying jaundice may be caused by sepsis or infection, hemolytic disease, intrinsic red cell defects, oxidant drugs, enclosed hemorrhage or various metabolic disorders. However, in the absence of other indication of a liver disorder or other cause, jaundice may be assumed to be physiologic in nature provided that the serum bilirubin has not reached an inordinately high level and that it begins to decrease toward the end of the first week of life.
  Since, at present, medical science recognizes little or no hazard in physiologic jaundice, physicians routinely advise their patients that circumcision may be performed on the eighth day without fear of endangering the infant even though the child manifests clinical signs of physiologic jaundice. Parents thus reassured are anxious to fulfill the <i>mizvah</i> of <i>milah</i> in its proper time and are reluctant to delay circumcision until after the jaundice has disappeared. Support for this practice has also been expressed recently by Dr. Michael Amit in a contribution to the first volume of <i>Halakhah u-Refu'ah,</i> edited by Rabbi Moshe Hershler (Jerusalem, 5740).
  Medical opinion notwithstanding, Shulḥan Arukh, Yoreh De'ah 263:1, rules quite clearly that a child should not be circumcised when signs of jaundice are present. This provision of Jewish law is, to be sure, predicated upon considerations of health. Nevertheless, it is well established that matters which in rabbinic sources are regarded as posing danger to life must be considered in that light even if contemporary science fails to recognize a potential danger. Thus, <i>Shabbat</i> restrictions must be ignored in order to treat a patient deemed by Jewish law to be afflicted with a dangerous condition even if physicians deny that any danger exists. <i>Baḥ, Oraḥ Hayyim</i> 328:4, states unequivocally that physicians, in espousing such opinions, are in error. Language which is even more emphatic in nature is employed by <i>Pri Megadim, Eshel Avraham, Oraḥ Hayyim</i> 328:2. The matter can perhaps be put into a more felicitous perspective by recognizing that a talmudic statement expressing that a certain malady is dangerous in nature engenders, at the very minimum, a state of doubt. Although it is indeed possible that "nature has changed" <i>(nishtaneh ha-teva)</i> and that a given danger no longer exists, or that such a pronouncement was based upon inaccurate medical assumptions which were current at the time, it is also possible that the Sages may indeed have been privy to information not available to physicians of subsequent ages and that at some future time medical science may again perceive the hazard as veridical.3<i class="footnote">Cf., R. Yonatan Steif, <i>Teshuvot Mahari Shteif,</i> no. 52.</i> Certainly, absence of evidence of known danger does not exclude the possibility that danger may occur in even a single instance.4<i class="footnote">See <i>Teshuvot Maharam Schick, Yoreh De‘ah,</i> no. 24. See also R. Moshe Sternbuch, <i>Mo‘adim u-Zemanim,</i> VII, no. 205, who cites an observation attributed to the late Brisker Rav to the effect that untoward effects of circumcision of an infant suffering from physiologic jaundice may not become manifest until “many years have elapsed”; hence, in the absence of proximate temporal succession, medicine has understandably failed to discover a causal connection between circumcision in the presence of physiologic jaundice and the much delayed onset of a life-threatening condition.</i> With regard to neonatal jaundice in particular, while it may readily be granted that physiologic jaundice poses no known danger to the child, there does exist a distinct possibility that the jaundice is, in fact, the effect of a liver or other disorder and is misdiagnosed as physiologic jaundice. This consideration itself might well have been sufficient cause for the Sages to prohibit circumcision in all cases of jaundice.
  The halakhic rule is that even the possibility of hazard must be treated as a danger. Accordingly, any matter considered by the Sages as posing a threat to life must be regarded as constituting a possible hazard for all purposes of Halakhah. Indeed the attitude of Jewish law with regard to possible threat to life is succinctly stated in the final sentence of the statement codifying the prohibition against circumcizing a child who exhibits signs of jaundice. Rambam, Hilkhot Milah 1:18 and Shulḥan Arukh, Yoreh De'ah 263:1, declare, "It is necessary to be extremely careful with regard to these matters. It is forbidden to circumcise a child in whom there is a suspicion of illness since danger to life takes precedence over all else, for it is possible to perform circumcision at a subsequent time, but it is never possible to restore a single Jewish life." It is therefore little wonder that authorities such as R. Shlomoh Kluger, <i>Teshuvot Tuv Ta'am va-Da'at, Yoreh De'ah,</i> no. 222;R. Yehudah Leib Zirelson, <i>Azei ha-Levanon,</i> no. 62; R. Yonatan Steif, <i>Teshuvot Mahari Shteif,</i> no. 62; R. Yitzchak Weisz, <i>Minḥat Yizḥak,</i> III, no. 145; R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer,</i> XIII, no. 81; and R. Moshe Sternbuch, <i>Mo'adim u-Zemanim,</i> VII, no. 205, strongly admonish that physicians who advise circumcision of infants showing signs of jaundice should not be heeded.
  Nevertheless, not all forms of jaundice are regarded by Jewish law in a uniform manner. Jewish law pertaining to circumcision distinguishes between minor and serious illnesses. A child may not be circumcised while suffering even a minor illness or when afflicted by pain even though such conditions present no danger whatsoever. <i>A fortiori,</i> a child afflicted with an illness which does present a danger to life or an illness which affects "his entire body," may not be circumcised while afflicted in this manner. Moreover, a child thus afflicted may not be circumcised until the expiration of seven full days subsequent to having been fully restored to a state of complete health. Jaundice which is physiologic in nature is deemed by Jewish law to be non-life-threatening in nature. Hence circumcision is forbidden only until "his blood falls" (<i>Shabbat</i> 134a), i.e., hepatic function has matured and the liver is capable of conjugating the bilirubin in order for it to be excreted by the body. However, when serum bilirubin is excessively high, or when even moderate levels are diagnosed as being the result of a liver or other disorder, the principle which pertains to affliction with a hazardous illness applies, viz., the child may not be circumcised, not only while actually endangered by the illness, but until <i>all</i> symptoms of the illness have disappeared and an additional period of seven full days has elapsed.5<i class="footnote">See <i>Arukh ha-Shulḥan, Yoreh De‘ah</i> 263:2; R. Shalom Mordecai Schwadron, <i>Da‘at Torah, Yoreh De‘ah</i> 38:8; R. Shlomoh Kluger, <i>Teshuvot Tuv Ta‘am va-Da‘at, Yoreh De‘ah,</i> I, nos. 220 and 222; R. Mordecai Winkler, <i>Teshuvot Levushei Mordekhai, Yoreh De‘ah,</i> no. 180; <i>Teshuvot Shevet Sofer, Oraḥ Ḥayyim,</i> no. 38; <i>Mishmeret Shalom,</i> no. 17; and <i>Oẓar Yad ha-Ḥayyim,</i> sec. 363. Cf., however, the conflicting opinions of <i>Ḥokhmat Adam</i> 149:4, who maintains that only the circumcision of a child who is “excessively yellow” must be postponed but that such a child is to be circumcised immediately upon his color returning to that of “other children,” and of <i>Teshuvot Maharam Rothenberg,</i> II, no. 152; <i>Yad Ketanah, Hilkhot Milah,</i> no. 8, sec. 18; R. Menachem Mendel Schneersohn, <i>Ẓemaḥ Ẓedek, Piskei Dinim, Yoreh De‘ah</i> 263; and <i>Teshuvot Tuv Ta‘am va-Da‘at, Yoreh De‘ah,</i> I, no. 220, who maintain that a subsequent seven-day waiting period is required in <i>all</i> cases of perceivable jaundice. (<i>Ẓemaḥ Ẓedek</i> is inaccurately cited by <i>Koret ha-Brit, Naḥal ha-Brit</i> 263:2 as requiring a seven-day waiting period only when the entire body is yellow.) See also <i>Teshuvot Bet Yiẓḥak, Yoreh De‘ah,</i> II, no. 91, sec. 6, who requires a seven-day period if the jaundice has not receded by the eighth day and the baby is “excessively yellow over the entire body,” and R. Chaim Eleazar Shapiro, <i>Ot Ḥayyim ve-Shalom</i> 263:1. These authorities both rule against circumcision on <i>Shabbat</i> in all cases in which jaundice has been perceived. They also require a seven-day waiting period if circumcision, in the absence of jaundice, would have occurred on <i>Shabbat</i> and in all instances in which the jaundice was evident over the entire body. When jaundice is evident over the entire body a seven-day waiting period is required by <i>Teshuvot Mahari Shteif,</i> no. 63, as well. Cf., also R. Eliyahu Posek, <i>Koret ha-Brit, Naḥal ha-Brit,</i> 263:2.</i>
  Accordingly, it is certain that a baby who manifests yellowness should not be circumcised until all symptoms of physiologic jaundice have disappeared. When jaundice is excessive, or is the result of a condition other than normal hepatic immaturity, the baby may not be circumcised until the jaundice has totally disappeared and seven additional days have elapsed thereafter. According to some authorities violation of these prescriptions not only endangers the child but has wider ramifications as well. Rabbi Jacob Ettlinger, <i>Teshuvot Binyan Ẓion,</i> no. 87, rules that, since Jewish law forbids circumcision of an infant who shows signs of jaundice, one who circumcises a child on <i>Shabbat</i> under such circumstances is a Sabbath violator. It also follows that the <i>mizvah</i> of circumcision has not been fulfilled. The appointed time for the circumcision of a child who is "yellow" does not arrive until his color has returned to normal. Hence, argues <i>Binyan Ẓion,</i> circumcision while the child is yet yellow is tantamount to circumcision prior to the eighth day. Circumcision prior to the prescribed time does not constitute fulfillment of the <i>mizvah</i> of <i>milah.</i> Accordingly, R. Jacob Ettlinger, both in <i>Binyan Ẓion,</i> no. 87 and in <i>Arukh la-Ner, Yevamot</i> 71b, declares that if circumcision is performed while a child is afflicted with an illness, or within the subsequent seven-day period if the child has been afflicted with a serious illness, symbolic letting of blood is required following complete recovery of the infant.6<i class="footnote">This is also the position of <i>Yashresh Ya‘akov, Yevamot</i> 64b, and of <i>Ot Ḥayyim ve-Shalom</i> 262:5. An opposing view is espoused by <i>Teshuvot Bet Yiẓḥak, Yoreh De‘ah,</i> II, no. 91 and <i>Avnei Nezer, Yoreh De‘ah,</i> no. 326. See also <i>Teshuvot Oneg Yom Tov,</i> no. 22. Cf., <i>Mo‘adim u-Zemanim,</i> VII, no. 205.</i>
  In light of the lamentable disregard of these provisions of Jewish law on the part of many parents and <i>mohelim,</i> a number of rabbinical figures associated with the Central Rabbinical Congress of the United States and Canada (<i>Hitaḥdut ha-Rabbanim</i>) issued a "Notice and Warning to <i>Mohelim</i>" dated 25 Nisan 5737. This document has received wide circulation and is included in the prefatory section of a new offset edition of <i>Zokher ha-Brit,</i> a valuable compendium devoted to the laws of <i>milah,</i> authored by Rabbi Asher Anshel Gruenwald.
  The signators, however, do not content themselves simply with a restatement of the pertinent halakhah. Since perception of yellowness is subjective in nature and since ignorance or disregard of Jewish law in this matter is deemed by Halakhah to constitute a possible threat to the life of the child, these authorities advance a clinical criterion for the determination of the presence of a level of jaundice which requires postponement of circumcision. In a ruling which they candidly describe as being issued "for the purposes of containing the matter" (<i>le-migdar milta</i>) they forbid circumcision of any child either if yellowness is visually perceivable or if the child's bilirubin count is five or higher. They further rule that any child whose serum bilirubin has reached or has exceeded ten mg. per 100 ml. must be considered to be afflicted with a serious illness. As noted earlier, a child who has been afflicted with a serious illness may not be circumcised until seven complete days have elapsed subsequent to his complete cure. Accordingly, if the serum bilirubin reaches ten they require that seven full days elapse subsequent both to disappearance of all visible traces of yellowness and to the time at which the bilirubin count has fallen to five.
  Insofar as the provisions of Jewish law are concerned it is difficult to correlate the visual criteria of Halakhah with the measurement of serum bilirubin. A child with a pale complexion manifests signs of yellowness at a much lower level of serum bilirubin than does a child with a ruddy complexion (although a trained physician may detect jaundice much sooner in a ruddy infant than in a pale baby). In many infants yellowness may not be perceived until the bilirubin level exceeds seven mg. per 100 ml. of serum, although, other than in newborn infants, clinical jaundice can usually be perceived when the serum bilirubin level exceeds 2.5 mg. per ml.7<i class="footnote">See <i>Smith’s Blood Diseases of Infancy and Childhood</i>, 4th edition, p. 253.</i> Even more questionable is the ruling of these authorities in requiring a seven-day waiting period for a child whose bilirubin has reached a level of 10 mg. per ml. Although a child who is inordinately yellow may not be circumcised until seven days have elapsed subsequent to a return of normal coloring, it is doubtful that many children are perceived as being "inordinately yellow" unless the bilirubin level is significantly higher than ten.
  It should also be noted that there is some disagreement with regard to the extent of yellowness which necessitates postponement of circumcision. R. Shlomoh Kluger, <i>Teshuvot Tuv Ta'am va-Da'at, Yoreh De'ah,</i> I, no. 222, and R. Shalom Mordecai Schwadron, <i>Da'at Torah, Yoreh De'ah</i> 38:8 and <i>Arukh ha-Shulḥan</i> 263:3 maintain that circumcision must be postponed even if the yellowness is perceived only in the face. R. Shmuel Dov Ingelberg (known as "the <i>mohel</i> of Warsaw"), <i>Brit Avraham,</i> sec. 12, reports that this was also the position of R. Joseph Dov Soloveitchik and of R. Bunim of Varkow. However, R. Eliyahu Posek, <i>Koret ha-Brit, Naḥal ha-Brit</i> 263:1; R. Malki'el Zevi Tennenbaum, <i>Divrei Malki'el,</i> II, no. 132; and R. Yehudah Leib Zirelson, <i>Azei ha-Levanon,</i> no. 62, maintain that circumcision must be delayed only if jaundice is manifest over the surface of the entire body. <i>Koret ha-Brit</i> adds the observation that jaundice over the surface of the major portion of the body must be considered as tantamount to jaundice over the entire body. This point is disputed by <i>Divrei Malki'el,</i> II, no. 132. <i>Ot Hayyim ve-Shalom</i> 263:2; <i>Teshuvot Mahari Shteif,</i> no. 62; and <i>Teshuvot Minḥat Yizḥak,</i> III, no. 145, rule in accordance with the former opinion. <i>Ot Hayyim ve-Shalom,</i> citing <i>Koret ha-Brit,</i> agrees that circumcision may be performed if the parents are yellow in complexion provided that yellowness is perceived only on the face of the infant.8<i class="footnote"><i>Minḥat Yiẓḥak</i> also rules quite cogently that circumcision may not be performed when contraindicated by Jewish law even if as a result of such a ruling the parents will seek out a <i>mohel</i> or physician who will not only perform the circumcision while the baby is jaundiced but will also fail to remove the foreskin in the prescribed manner.</i>
  The practice of some <i>mohelim</i> to circumcise an infant showing some signs of jaundice, although not in conformity with normative Halakhah, is not entirely without precedent. One source which is adduced by some in support of this practice is a somewhat cryptic statement of R. Judah Asad, <i>Teshuvot Yehudah Ya'aleh, Yoreh De'ah,</i> no. 240. In concluding a discussion of the prohibition against circumcising a baby who manifests clinical signs of jaundice, this authority states, "Nevertheless it is best to consult a physician with regard to similar matters (<i>u-ke-yoze ba-zeh</i>) and one may rely upon him with regard to [determining whether] to circumcize or not to circumcize." This statement readily lends itself to the interpretation that, since the consideration is entirely one of danger to the infant, the provisions recorded in <i>Shulḥan Arukh</i> are subject to modification on the basis of competent medical advice. If this was indeed Mahari Asad's contention, his position is contradicted by the previously cited statements of <i>Baḥ</i> and <i>Pri Megadim</i> whose view was adopted by all subsequent authorities. However, Rabbi Weisz interprets Mahari Asad's statements in an entirely different manner. Rabbi Weisz understands Mahari Asad as simply elucidating the provisions of Jewish law with regard to yellow, green and red skin color and then adding the comment that since there are no statutory provisions with regard to other types of unusual skin coloring (as indicated by use of the phrase <i>u-ke-yoze ba-zeh</i>) in the event that any other discoloration is present medical advice should be sought with regard to any possibility of danger.
  A somewhat firmer basis for sanctioning circumcision despite the presence of mild jaundice is the ruling of <i>Hokhmat Adam</i> 149:4. Citing phraseology employed by Rambam, Hilkhot Milah 1:17, <i>Hokhmat Adam</i> declares that a child who is "inordinately yellow" (<i>yarok be-yoter</i>) may not be circumcised despite the fact that other authorities, including <i>Shulḥan Arukh,</i> omit the word "inordinately" (<i>be-yoter</i>) and clearly declare that any perceivable degree of jaundice necessitates postponement of circumcision. Dr. Jacob Levy, <i>No'am</i>, X (5729), 178, indicates that the practice of contemporary <i>mohelim</i>—decried in the statement cited earlier—is based upon the position of <i>Hokhmat Adam.</i> It should be noted that <i>Arukh ha-Shulḥan</i> 263:3 and <i>Rosh Efrayim</i> 38:52 both maintain that there is no disagreement between Rambam and other authorities. They understand the term "<i>be-yoter</i>," which is employed by Rambam, as excluding only "natural"yellowness of complexion which is not attributed to jaundice. It should be noted that Rambam concludes his statement with the words, "It is necessary to be extremely careful with regard to these matters."9<i class="footnote">Cf., however, <i>Aẓei ha-Levanon,</i> no. 62, who on the basis of Rambam’s language distinguishes between “yellow” and “weak yellow” (<i>kalush</i>) or “tendency” (<i>netiyah</i>) toward yellowness. This appears to be the position of <i>Avnei Nezer, Yoreh De‘ah,</i> no. 320, as well.</i> Moreover, <i>Nimukei ha-Riv, Yoreh De'ah</i> 263:1, emphasizes that <i>Shulḥan Arukh</i> consciously omits the word "<i>be-yoter</i>" and states that he emphasizes this point "because the [author of the] work <i>Hokhmat Adam</i> copied the phraseology of Rambam, and the [former] work is found in every person's possession and [hence] <i>mohelim</i> may come to rely upon their judgment with regard to this and from this there may arise danger to life. Therefore, I found it necessary to warn <i>mohelim</i> with regard to this."9a<i class="footnote">In a responsum published in a recent issue of <i>Moriah,</i> Nisan 5743, and in <i>Sefer ha-Zikaron</i> published in memory of R. Shneur Kotler, edited by R. Joseph Buchsbaum (Jerusalem, 5743), R. Jacob Kamenecki similarly takes issue with <i>Ḥokhmat Adam</i> and rules that a child who manifests any perceivable degree of jaundice should not be circumcised.</i>
  Parenthetically, jaundice prior to the second day of life is never physiologic in nature.10<i class="footnote">See <i>Blood Diseases of Infancy and Childhood</i>, 3rd edition, p. 108.</i> Jaundice at or within the first twenty-four hours of birth is a symptom of dysfunction rather than of normal hepatic immaturity. Hence, when jaundice does occur on the first day, seven full days must elapse following total disappearance of all signs of jaundice before circumcision may be performed. Of interest is an opinion expressed by R. Shlomoh Kluger in his <i>Teshuvot Tuv Ta'am va-Da'at, Yoreh De'ah,</i> I, no. 220. Contrary to the position of most other rabbinic decisors, R. Shlomoh Kluger rules that a child who develops a yellow skin color subsequent to birth may not be circumcised until seven days have elapsed after the jaundice is no longer visible. Surprisingly, he posits an exception waiving the seven-day waiting period in one situation which, in light of contemporary medical knowledge, must be recognized as constituting a serious illness. Rabbi Kluger rules that a child who manifests yellowness at birth may be circumcised as soon as the yellowness is no longer evident. Rabbi Kluger asserts that in the latter case the jaundice may be assumed to be "natural" and not the result of sickness. Quite obviously, this opinion was predicated upon an erroneous medical assumption. Since jaundice within the first twenty-four hours following birth is now recognized as a sign of a malady it is quite clear that a seven-day period is required subsequent to disappearance of jaundice present at birth.11<i class="footnote">See Dr. Jacob Levy, <i>No‘am</i>, X (5727), 176.</i>
  Hypospadias and Circumcision
  In a normal male the urethra, i.e., the canal or passage through which urine is discharged, extends through the entire length of the male organ and opens at the tip of the glans. Hypospadias is a congenital defect of the urethra representing a developmental anomaly characterized by a defect in the wall of the urethra as a result of which the canal does not terminate in an orifice at the tip of the organ but opens instead on the under surface, either at a point close to the glans or elsewhere along the length of the organ or, at times, close to or, infrequently, in the scrotum itself. This is frequently accompanied by either an abbreviated or displaced foreskin which may at times leave the underside of the glans completely exposed and often gives the child the appearance of being partially circumcised. Indeed, <i>Avnei Nezer, Yoreh De'ah,</i> II, no. 322, states that at times the tissue which is present may be a mere "flap of skin" rather than a foreskin. If such is the case the tissue need not be removed and indeed removal would constitute a forbidden act of "<i>ḥavalah</i>" unless undertaken for therapeutic purposes.12<i class="footnote">See also R. Moshe Bunim Pirutinsky, <i>Sefer ha-Brit</i> (New York, 5732), <i>Likutei Halakhot</i> 263:48; Cf., R. Ya‘akov Breisch, <i>Ḥelkat Ya‘akov,</i> II, no. 20, sec. 3.</i> Hypospadias is an anomaly which occurs in approximately one out of every 300 male births. If left untreated, depending upon the location of the orifice, the male may not be able to experience ejaculation in the usual manner in conjunction with sexual intercourse and hence will not be able to sire children. This condition is frequently accompanied by a downward curvature of the penile shaft known as chordee.13<i class="footnote">A description of what is apparently a case of chordee appears in an entirely different context in <i>Teshuvot Rav Pe‘alim,</i> III, <i>Even ha-Ezer,</i> no. 2.</i> A similar, but rarer, congenital anomaly known as epispadias involves termination of the canal in an orifice on the upper surface of the organ.
  The earliest description of hypospadias in halakhic literature occurs in <i>Teshuvot ha-Rosh,</i> cited by <i>Bet Yosef, Even ha-Ezer</i> 5, and <i>Avnei Nezer, Yoreh De'ah,</i> II, no. 322. The earliest mention in responsa literature of a remedy for this condition appears in <i>Teshuvot Hatam Sofer,</i> VI, no. 64.14<i class="footnote">The condition described in <i>Teshuvot Ḥatam Sofer, Even ha-Ezer,</i> I, no. 12, also appears to be a case of hypospadias.</i> The remedy described by <i>Hatam Sofer</i> as being current in medical practice in his time involved closure of the abnormal congenital opening and surgical construction of an orifice together with extension of the urethra by means of inserting a silver tube.15<i class="footnote">Cf., <i>Teshuvot Maharam Schick, Yoreh De‘ah,</i> no. 243, regarding circumcision of such a child on <i>Shabbat.</i></i> The procedure was apparently performed soon after birth. <i>Hatam Sofer</i> reports that some rabbinic authorities of his day were led to believe that the anomaly was fatal and would lead to the demise of the child no later than three months subsequent to birth. On the basis of this information those authorities ruled that circumcision should not be performed.
  <i>Hatam Sofer</i> takes sharp issue with this position, declaring it to be both medically and halakhically erroneous. <i>Hatam Sofer</i> correctly observes that the condition is not fatal. He also adds that even if the anomaly were fatal, circumcision must nevertheless be performed even though the child is afflicted with a fatal defect (as distinct from a child suffering from an illness)16<i class="footnote">A similar remedy is described also by R. Shneur Zalman Ashkenazi of Lublin, <i>Teshuvot Torat Ḥesed, Even ha-Ezer,</i> no. 38. Cf., R. David Menachem Babad, <i>Teshuvot Ḥavaẓelet ha-Sharon,</i> II, <i>Even ha-Ezer,</i> no. 12.</i> provided that the circumcision itself does not increase the degree of danger or foreshorten life. <i>Hatam Sofer</i> reports that he has been informed by a number of physicians that hypospadias presents no medical problem which would contraindicate performance of circumcision in the usual manner.
  Contemporary medical practice is to delay repair of hypospadias until the child is approximately three years of age. At that time an epithelial tube is constructed in place of the missing segment of the urethra and the congenital anomalous orifice is closed. Physicians advise against circumcision prior to the time of surgery so that the foreskin will be available for use as a skin flap for transfer in conjunction with the reconstructive plastic surgery necessary for correction of hypospadias. The question of the permissibility of delaying circumcision for this purpose is the subject of an article by a <i>mohel,</i> Rabbi Joseph David Weisberg, which appears in a pamphlet entitled <i>Brit Milah,</i> published in 5733 by the Falk-Schlesinger Institute of Shaare-Zedek Hospital in Jerusalem under the editorship of Dr. Abraham Steinberg. <i>No'am,</i> XVIII (5735-36), 52-60, contains a responsum on the same topic by R. Yitzchak Glickman. Earlier discussions of this question include those of R. Aryeh Leib Grossnass, <i>Lev Aryeh,</i> I, no. 41; R. Aaron Burak, <i>Pirḥei Aharon,</i> I, 182-185; R. Pinchas Mordecai Teitz, <i>Ha-Pardes,</i> Nisan 5714; and R. Chaim U. Lipschitz, <i>Sinai,</i> LXIII, no. 5-6 (Av-Elul 5728). The most comprehensive treatment of this topic yet to appear is that of R. Ya'akov Breisch, <i>Helkat Ya'akov</i> II, nos. 20 and 21, and III, nos. 36 and 37.
  This question, in terms of its halakhic ramifications, is virtually identical with another question which received extensive treatment in rabbinic responsa.17<i class="footnote">One additional factor present in the case of <i>Avnei Nezer</i> is that in the situation brought to his attention the procedure was to be performed within the first neonatal week. Although it would preclude circumcision on the eighth day, the procedure, if performed prior to that time, is undertaken at a time when, arguably, there is as yet no obligation with regard to the <i>miẓvah</i> of circumcision; see also <i>Minḥat Ḥinnukh,</i> no. 4, p. 8, and no. 97, and a responsum of R. Abraham Nathan Elberg, son-in-law of the author of <i>Teshuvot Tirosh ve-Yiẓhar</i> published in <i>Tirosh ve-Yiẓhar,</i> no. 127. Cf., below, note 19.</i> The latter question involved the circumcision of a child born in 5664 in Poland in the city of Plonsk where R. Zevi Yechezkel Michelson served as rabbi. The problem presented to this authority became the subject of two responsa published in his <i>Teshuvot Tirosh ve-Yizhar,</i> nos. 97 and 127. Rabbi Michelson writes that he referred the question to R. Abraham Bornstein of Sochaczew, one of the outstanding rabbinic decisors of the day. The latter's response, which is the best known and most widely cited treatment of the question, appears in <i>Avnei Nezer, Yoreh De'ah</i> II, no. 321. Rabbi Michelson apparently also submitted the identical question to a number of other colleagues for their consideration. A number of responsa discussing the selfsame problem appear in the responsa collections of other halakhic authorities.18<i class="footnote">See R. Malkiel Zevi Tennenbaum, <i>Teshuvot Divrei Malki’el,</i> V, no. 148; R. Yehudah Leib Zirelson, <i>Aẓei ha-Levanon,</i> no. 61; and R. Moshe Perlmutter, <i>Teshuvot Even Shoham, Yoreh De‘ah,</i> no. 38. <i>Tirosh ve-Yiẓhar,</i> no. 127, reports that this question is also discussed by R. Eliyahu Klatzkin in a brief work entitled <i>Dvar Eliyahu.</i> See also <i>Sefer ha-Brit, Likutei Halakhot</i> 261:47-48 and <i>Sefer ha-Brit, Mekor u-Bi’ur Halakhah</i> 261:5.</i> These responsa are addressed to Rabbi Michelson and those which are dated bear dates in the years 5664 and 5665. The case in question involved a child who was born with a "crooked foot." In order to correct that orthopedic problem the physicians advised placing the foot in a cast. For medical reasons which are not at all clear the physicians insisted that it would be impossible to correct the orthopedic condition if circumcision were to be performed on the eighth day. Failure to institute corrective measures promptly would have left the child a cripple. In his response <i>Avnei Nezer,</i> basing himself upon Rema, Oraḥ Hayyim 656:1, unqualifiedly permits postponement of circumcision.19<i class="footnote">R. Malkiel Zevi Tennenbaum, <i>Divrei Malki’el,</i> V, no. 148, addressing himself to the identical query, denies that the orthopedic problem constitutes “even danger to a limb,” but nevertheless permits the cast to be applied. He further adds that this may be done only prior to the eighth day while there is, as yet, no immediate obligation with regard to circumcision even though fulfillment of the <i>miẓvah</i> will subsequently be delayed. He rules, however, that the procedure may not be performed on the eighth day or thereafter since at that time there already exists an obligation to perform circumcision; see also <i>Teshuvot Tirosh ve-Yiẓhar,</i> no. 127. <i>Avnei Nezer</i> notes the same consideration and advises against performing the procedure on the eighth day if it is possible to do so earlier. Citing <i>Tosafot Rid, Kiddushin</i> 29a, <i>Avnei Nezer</i> declares that the obligation concerning circumcision devolves upon the father on the evening of the eighth day even though the act of circumcision cannot be performed until daybreak. Accordingly, he advises that the cast be applied prior to the evening of the eighth day.</i> Rema rules that a person need expend no more than twenty percent of his net worth in fulfillment of any given <i>mizvah</i>.20<i class="footnote">See also <i>Teshuvot Even Shoham, Yoreh De‘ah,</i> no. 38. Cf., <i>Teshuvot Ḥelkat Yo’av, hashmatot,</i> sec. 89, who states that a person is exempt from fulfillment of any <i>miẓvah</i> which would entail either sickness or great pain; <i>Ḥelkat Ya‘akov,</i> however, sanctions only passive non-fulfillment and expressly prohibits an action which renders a <i>miẓvah</i> nugatory. See also R. Abraham Pietarkovsky, <i>Piskei Teshuvah,</i> I, no. 120, who suggests that this exemption may not pertain to fulfillment of the <i>miẓvah</i> of circumcision since by its very nature circumcision, as distinct from other <i>miẓvot,</i> entails pain.</i> The onus of remaining a cripple for life, declares <i>Avnei Nezer,</i> is tantamount to expenditure of far more than a fifth of one's possessions and need not be accepted for the sake of a <i>mizvah</i>.21<i class="footnote"><i>Piskei Teshuvah</i> also cites Rashba, <i>Baba Kamma</i> 9b, who explains that the rationale underlying the twenty percent limitation is the consideration that expenditure of a greater amount might lead to impoverishment and to the individual becoming a burden upon the community. Although this consideration does not apply in the case at hand, Rabbi Pietarkovsky opines that Rashba’s comments should not be understood in a literal manner.</i> Rabbi Breisch, <i>Helkat Ya'akov,</i> II, no. 20, cites <i>Nedarim</i> 64b, which speaks of a person who does not have children as being comparable, not merely to a cripple, but to one who has died. Since one need not become a cripple for the sake of a <i>mizvah,</i> it follows, <i>a fortiori,</i> argues Rabbi Breisch, that for the sake of fulfilling a <i>mizvah,</i> one need not accept the prospect of not being able to father children. It may also be noted that in the case of a child born with hypospadias the question is not of an individual crippling himself for the sake of his own fulfillment of a <i>mizvah</i> but of one person causing another to bear a life-long defect for the sake of the first person's <i>mizvah.</i> Citing <i>Parashat Derakhim, drush sheni,</i> who makes a similar point with regard to endangering the life of another, Rabbi Lipschitz points out that the <i>mizvah</i> of circumcision is incumbent upon the father, not upon the eight-day-old child. The father clearly has no right to cause the child to be infertile in order for the father to fulfill his own <i>mizvah</i>.22<i class="footnote">Cf., however, both <i>Teshuvot Rivash,</i> no. 131, as analyzed by R. Baruch Ber Leibowitz, <i>Birkat Shmu’el, Kiddushin,</i> no. 18, and <i>Avnei Nezer, Yoreh De‘ah,</i> II, no. 330, who maintain that fulfillment of the <i>miẓvah</i> accrues to the child. This also appears to be the position of Rabbenu Ḥananel, <i>Yoma</i> 85a; see R. Ephraim Oshry, <i>Divrei Efrayim, Kuntres me-Emek ha-Bakha,</i> no. 5. See also <i>Koret ha-Brit, Mekor u-Bi’ur Halakhah</i> 260:3.</i> A similar argument is advanced by R. Aryeh Leib Grossnass, <i>Lev Aryeh,</i> I, no. 41. Although neither author cites an earlier source, the identical distinction is made by R. Yechezkel Lipschitz, cited in <i>Teshuvot Tirosh ve-Yizhar,</i> no. 127.23<i class="footnote">See also <i>Ḥatam Sofer,</i> commentary on <i>Shabbat</i> 133b, who makes the identical point with regard to endangerment of the child for the sake of fulfilling the father’s <i>miẓvah</i> with regard to circumcision.</i>
  Other authorities require that medical treatment be provided and circumcision delayed for entirely different reasons. R. Yehudah Leib Zirelson, <i>Teshuvot Azei ha-Levanon,</i> no. 61, argues that correcting the orthopedic problem in order that the child may have use of the limb constitutes the fulfillment of a positive commandment. <i>Sanhedrin</i> 73a declares that the verse "and you shall return it to him" (Deut. 22:2) mandates not only the return of lost property but, <i>a fortiori,</i> preservation of life as well. <i>Azei ha-Levanon</i> cogently argues that restoration of use of a limb similarly constitutes fulfillment of this <i>mizvah.</i> Citing Ritva, <i>Sukkah</i> 25a,24<i class="footnote">A similar, but not identical, question arises with regard to whether it is permissible to delay fulfillment of a <i>miẓvah</i> in order to perform it in a more optimal manner. <i>Terumat ha-Deshen,</i> no. 35, analyzes this question in the context of delaying <i>kiddush levanah</i> until the conclusion of <i>Shabbat</i> in order to pronounce the blessing while attired in Sabbath garments; see <i>Shulḥan Arukh, Oraḥ Ḥayyim</i> 426:2. <i>Teshuvot Shevut Ya‘akov,</i> I, no. 34, discusses the same question in the context of whether one should perform the <i>miẓvah</i> of <i>arba minim</i> at the earliest possible hour or should postpone its fulfillment until a more beautiful <i>etrog</i> is available. Cf., also the comments of <i>Magen Avraham, Oraḥ Ḥayyim</i> 25:2, in explanation of the ruling of Rema that one need not delay the donning of phylacteries until a <i>tallit</i> is also available. <i>Sefer Ḥasidim</i> (Berlin, 5651), no. 454, implies that an individual may delay prayer in order to pray with a <i>minyan</i> provided that there is no danger that in so doing he will delay beyond the appointed time for prayer. See also <i>Teshuvot Yad Eliyahu,</i> no. 42, and <i>Magen Avraham, Oraḥ Ḥayyim</i> 90:15.</i> he further argues that it is permissible to undertake the performance of a <i>mizvah</i> even if, as a result, it may be impossible to fulfill an even greater <i>mizvah</i> at a subsequent time.25<i class="footnote">See also <i>Teshuvot Radbaz,</i> IV, no. 1087; Cf., however, <i>Teshuvot Ḥakam Ẓevi,</i> no. 106; <i>Teshuvot Tirosh ve-Yiẓhar,</i> no. 127; <i>Ḥokhmat Adam</i> 68:1 and <i>Nishmat Adam, ad locum;</i> and R. Israel Meir ha-Kohen, (Ḥafeẓ Ḥayyim), <i>Maḥaneh Yisra’el, ma’amarim,</i> chap. 15. The situation addressed by Radbaz involved an incarcerated person granted freedom for one day of his choice each year. The question presented was whether he should avail himself of this privilege at the earliest opportunity in order to engage in communal prayer or whether he should delay exercising his prerogative until a time of particular significance such as Purim or the Day of Atonement. Radbaz ruled that the prisoner should not postpone the opportunity for performing a <i>miẓvah</i> even though delay would afford him the opportunity of performing a <i>miẓvah</i> of greater significance; see also <i>Sefer Ḥasidim,</i> no. 874. However, <i>Ḥokhmat Adam</i> and Ḥafeẓ Ḥayyim adopt the opposite position and rule that a soldier given the option of leave on a weekday or on Saturday should choose Saturday, provided that such choice does not involve excessive delay, in order that he may be able to pray on the Sabbath in the proper manner. This ruling applies even in situations in which the soldier’s duties do not involve violation of Sabbath laws and is based entirely upon the consideration that the prayer on the Sabbath constitutes a <i>miẓvah</i> of greater sanctity than prayer on a weekday. Thus this ruling reflects the position that a <i>miẓvah</i> of lesser sanctity may be left unfulfilled in order to fulfill a <i>miẓvah</i> of enhanced sanctity at a later time.</i> Accordingly, he rules that it is permissible to apply the cast, even if circumcision is delayed thereby, because correction of the orthopedic condition itself constitutes the fulfillment of a <i>mizvah.</i>
  <i>Azei ha-Levanon</i> further argues that failure to provide an available medical remedy entails a violation both of the commandment "you may not hide yourself" (Deut. 22:3) and the admonition "nor shall you stand idly by the blood of your fellow" (Lev. 19:16). Rambam, <i>Hilkhot Rozeaḥ,</i> 1:13, <i>Sefer ha-Hinnukh,</i> no. 237; and Shulḥan Arukh, Hoshen Mishpat 426:1, basing themselves upon <i>Sifra, Kedoshim</i> 41, view those commandments as encompassing an obligation to prevent not only loss of life but also to prevent financial loss from befalling one's fellow.26<i class="footnote">See also Ḥafeẓ Ḥayyim, <i>Be’er Mayim Ḥayyim, Hilkhot Issurei Rekhilut</i> 9:1.</i> If so, argues <i>Azei ha-Levanon,</i> it is similarly forbidden to allow a person to suffer loss of the use of a limb. Circumcision under such circumstances, concludes <i>Azei ha-Levanon,</i> would constitute a violation of these two negative commandments. This latter argument is applicable with regard to the circumcision of a child suffering from hypospadias. Although, chronologically, the <i>mizvah</i> of circumcision on the eighth day following the birth of a child presents itself prior to the opportunity for therapeutic remedy of this anomaly, performance of <i>milah</i> effectively makes it impossible to correct the condition at a subsequent time. Thus the act of circumcision entails a violation of both "you may not hide yourself" and of "nor shall you stand idly by the blood of your fellow." Although a single negative commandment is suspended under certain conditions in order to permit the discharge of a positive obligation, multiple negative commandments are not suspended for this purpose.
  Rabbi Breisch further argues that circumcision is a <i>mizvah</i> which may be fulfilled at a later time and hence may be delayed for the sake of a <i>mizvah overet,</i> i.e., a <i>mizvah</i> which, if delayed, will be totally abrogated. The Gemara, <i>Nedarim</i> 31b, explains that Moses delayed the circumcision of his sons because God commanded him to return to Egypt. Fulfillment of that command, which constituted a <i>mizvah overet,</i> could not be delayed, argues Rabbi Breisch, and, therefore, took precedence over fulfillment of the <i>mizvah</i> of circumcision which could be performed at a later time. Similarly, concludes Rabbi Breisch, since failure to perform surgery in a proper manner for the correction of hypospadias will result in the abrogation of the <i>mizvah</i> of procreation on the part of the child, circumcision may be delayed in order to make it possible for him to sire children.
  This latter argument is predicated on the assumption that since circumcision can be performed subsequent to the eighth day it is not deemed to be a <i>mizvah overet.</i> Support for Rabbi Breisch's view with regard to this point may be found in Magen Avraham, Oraḥ Hayyim 687:5, who explains a ruling of an earlier authority on the basis of this thesis. It is, however, at variance with the opinion of R. Zevi Benjamin Auerbach, <i>Naḥal Eshkol,</i> II, 40:12 (Halberstadt, 5628), p. 135. A question was posed to <i>Naḥal Eshkol</i> by a <i>mohel</i> who lived in a hamlet in which there was no <i>minyan</i> on <i>Rosh ha-Shanah.</i> Each year this individual was wont to journey to a distant town in order to pray and to hear the blowing of the shofar. One year a birth occurred a week before <i>Rosh ha-Shanah.</i> The <i>mohel</i> was placed in a quandary. Should he forego the opportunity to hear the blowing of the shofar in order to perform the circumcision or should the circumcision be delayed in order that he might hear the blowing of the shofar? <i>Naḥal Eshkol</i> rules that the <i>mohel</i> should remain at home in order to perform the circumcision. This ruling is cited and endorsed by R. Shalom Mordecai Schwadron, <i>Da'at Torah</i> 584:4. <i>Naḥal Eshkol</i> considers the possibility that <i>milah</i> might not be considered a <i>mizvah overet</i> because it may be performed subsequently while the blowing of the shofar is clearly a <i>mizvah overet.</i> He dismisses this contention as "something strange" because the commandment to perform circumcision on the eighth day cannot be delayed. This position is based upon the recognition that Leviticus 12:3 establishes an additional obligation beyond the <i>mizvah</i> of circumcision; viz., an obligation to perform circumcision on the eighth day specifically. Delay of circumcision beyond the eighth day constitutes abrogation of this latter <i>mizvah.</i> Accordingly, argues <i>Naḥal Eshkol,</i> although circumcision itself is not a <i>mizvah overet,</i> circumcision on the eighth day does constitute a <i>mizvah overet.</i>
  Although there exists some disagreement with regard to the precise nature of the halakhic grounds for the ruling, all rabbinic authorities agree that circumcision may be delayed, if necessary, in order to permit surgical correction of hypospadias. Rabbi Glickman correctly notes that when circumcision is delayed there is no reason to perform symbolic "letting of blood" or even partial circumcision on the eighth day. Moreover, such a procedure is forbidden on the grounds that since no <i>mizvah</i> is fulfilled the procedure constitutes an illicit act of "wounding." Furthermore, the father is likely to be misled into believing that proper circumcision has already been performed and may then fail to have circumcision performed in the proper ritual manner in conjunction with reconstructive surgery at a later date.
  Of particular moment is a later responsum authored by Rabbi Breisch, <i>Helkat Ya'akov,</i> III, no. 36, in which Rabbi Breisch suggests that circumcision may be performed on the eighth day in a manner which will leave sufficient foreskin for subsequent plastic surgery. The <i>mizvah</i> of <i>milah</i> requires that circumcision be performed in a manner which exposes the entire glans including the corona or crown. <i>Hokhmat Adam, Binat Adam, klal</i> 149, and <i>Hamudei Daniel,</i> cited by <i>Pitḥei Teshuvah, Yoreh De'ah</i> 264:13, rule that the foreskin covering this area must be entirely removed by excision. This is also the opinion of R. Judah Asad, <i>Teshuvot Maharya,</i> no. 250; <i>Teshuvot Yeshu'ot Malko, Yoreh De'ah,</i> no. 42; and R. Abraham Dov Kahana-Shapiro, <i>Dvar Avraham,</i> I, no. 27, sec. 2. Other authorities including <i>Divrei Hayyim,</i> II, nos. 114-118; R. Menachem Mendel Schneerson, <i>Ẓemaḥ Ẓedek,</i> nos. 101-102; <i>Hatam Sofer, Yoreh De'ah,</i> no. 249; <i>Maharam Schick, Yoreh De'ah,</i> no. 245 and <i>Maharsham,</i> I, no. 27, disagree and maintain that the essence of <i>milah</i> is simply exposure of the glans which may be accomplished by retracting the foreskin in a manner which leaves the glans exposed. R. Mordecai Jaffe, <i>Teshuvot Maharam Yafo,</i> no. 12, discusses both possibilities and states that he is unable to resolve the question definitively. The question hinges primarily upon the meaning of the Hebrew word "<i>yimol</i>—he shall circumcise" (Lev. 12:3), i.e., whether the word means "he shall cut" or whether its connotation is "he shall remove" as is the apparent meaning of the term in Deut. 10:16 and Deut. 30:6.
  Citing the commentary of <i>Tevu'at Shor</i> on <i>Shabbat</i> 137a and <i>Teshuvot Nefesh Hayah, Yoreh De'ah,</i> no. 73, Rabbi Breisch opines that even according to the position of the authorities who rule that retraction of the foreskin is sufficient for fulfillment of the <i>mizvah,</i> the major portion of the foreskin must nevertheless be severed by cutting, while the remainder may be retracted by pushing it toward the body so that the entire glans is exposed.27<i class="footnote">Cf., R. Moshe Feinstein, <i>Iggerot Mosheh, Yoreh De‘ah,</i> II, no. 120.</i>
  Thus there exists a possible method of performing <i>milah</i> on the eighth day without compromising the success of future corrective surgery. It may be possible for the <i>mohel</i> to cut off a major part of the foreskin and to slit the remainder lengthwise and then to fold it back over the corona thereby exposing the entire glans. The portion of the foreskin remaining on the membrum could then be utilized subsequently for purposes of plastic surgery. Rabbi Breisch rules that the opinion of the authorities who maintain that the entire foreskin need not be removed by excision may be relied upon in order not to delay fulfillment of the <i>mizvah</i> of circumcision. Of course, this procedure may be undertaken only if, in the opinion of competent medical specialists, the remaining foreskin is sufficient for subsequent reconstructive surgery. The procedure recommended by Rabbi Weisberg is identical to that described by Rabbi Breisch. Rabbi Weisberg reports that this procedure received the approbation of the late Rabbi Pinchas Epstein, former head of the <i>Bet Din</i> of the <i>Edah ha-Haredit,</i> and of the present incumbent of that position, R. Yitzchak Weisz, as well as the approval of two other prominent Israeli halakhic authorities, Rabbi Shlomoh Zalman Auerbach and Rabbi Joseph Eliashiv.
  Medical specialists consulted by this writer advise that the procedure described by Rabbi Weisberg may or may not be contraindicated medically depending upon the size of the foreskin, the location of the congenital orifice, and the amount of tissue required for corrective surgery. In their opinion, this procedure would be medically acceptable in only a small percent of cases. They are particularly skeptical with regard to the efficacy of this procedure in situations involving chordee as well as hypospadias. Correction of chordee requires removal of all contracted connective tissue from the ventral surface and covering the straightened but now longer and hence partially denuded shaft with tissue. The mobile, hair-free preputial tissue of the foreskin is required for this purpose. It is unlikely that the tissue remaining subsequent to a partial circumcision would be sufficient for proper performance of the reconstructive surgery. This is particularly true if, as is often the case, the baby is born with a foreskin which is smaller than usual.
  Upon perusal of the halakhic and medical literature on the subject of hypospadias this writer was disturbed by the realization that with the single exception of Rabbi Moshe Bunim Pirutinsky's treatment of this subject in his excellent and comprehensive work, <i>Sefer ha-Brit, Likutei Halakhot</i> 261:47-48, and <i>Mekor u-Bi'ur Halakhah</i> 261:5, the halakhic responsa devoted to this topic are uniformly based upon misinformation regarding the nature of the reconstructive surgery necessary for correction of this condition. It is implicitly assumed in the learned rabbinic discussions of this subject that the sole issue is <i>delay</i> of circumcision, the assumption being that <i>milah</i> is to be performed at the time of surgery. In point of fact most techniques employed to correct this anomaly do not at all provide for excision of the foreskin. The foreskin and mucosa are separated from the glans and retracted over the corona, then slit horizontally and folded along the underside of the penile shaft to create a new urethral tube. Often a buttonhole incision is made in the foreskin in order to allow passage of the glans through the opening and folding of the tissue along the underside. Although excess tissue may be cut away, this procedure does not involve excision of more than a minimal portion of the foreskin.28<i class="footnote">See, for example, John H. Hand, “Surgery of the Penis and Urethra,” <i>Urology,</i> third edition, edited by Meredith F. Campbell and J. Hartwell Harrison (Philadelphia, London, Toronto, 1970), III, 2547-2569; Norman B. Hodgson, “Hypospadias and Urethral Duplications,” <i>Campbell’s Urology,</i> fourth edition (Philadelphia, London, Toronto, 1979), II, 1571-1895; and Charles E. Horton and Charles J. Devine, “Hypospadias and Epispadias,” <i>Cibo Clinical Symposia,</i> Vol. 24, no. 3 (1972), pp. 2-27.</i> Some procedures which would permit excision of the foreskin have been attempted recently. Chief among these is a technique involving the carrying of a new urethra through a tunnel created in the glans, a process similar to that described by <i>Hatam Sofer.</i> This latter procedure is, however, considered medically inadvisable at the present time pending reports of more cases in which successful results have been achieved as well as the passage of sufficient time to evaluate the end results.29<i class="footnote">See Hand, p. 2562.</i>
  Although the accepted techniques employed in correcting hypospadias are different from those described in the published responsa, the halakhic issues involved in such procedures are identical to those discussed by Rabbi Breisch in vol. III of his <i>Helkat Ya'akov.</i> The principle applied by Rabbi Breisch to partial circumcision on the eighth day, namely, that retraction of the foreskin constitutes an acceptable form of fulfillment of the ritual requirement, may be applied to retraction of the foreskin in conjunction with reconstructive surgery.30<i class="footnote">See <i>Sefer ha-Brit, Likutei Halakhot</i> 261:48.</i>
  Depending upon the degree of chordee and the location of the congenital orifice it may, in some cases, be possible to excise a major portion of the foreskin at the time that reconstructive surgery is performed. If not medically contraindicated, this is halakhically the preferred procedure. The act of severing the foreskin should be performed by a qualified <i>mohel</i> or by an observant Jewish physician. Indeed, in all cases, since retraction of the foreskin constitutes circumcision according to the authorities upon whom Rabbi Breisch relies, the retraction should be performed by a <i>mohel</i> or by an observant physician. The procedure should also be performed during daylight hours rather than at night and care should be taken that there is no adhesion of tissue to any part of the corona.31<i class="footnote">See <i>Sefer ha-Brit, Likutei Halakhot</i> 261:48, as well as <i>Sefer ha-Brit,</i> second edition, addenda, p. 415.</i>
  In some few cases of hypospadias in which no accompanying chordee is present and in which the congenital orifice is located at the base of the glans it may be possible to perform whatever corrective surgery is necessary without utilization of the foreskin and hence in such situations there is no medical reason for delaying circumcision. Indeed, some urologists question the medical need for any corrective surgery in such cases.32<i class="footnote">Cf., R. Chaim Zevulun Charlop, <i>No‘am,</i> V (5722), 306.</i> Since in some cases the possibility of circumcision will depend upon the surgical technique used this is a factor to be considered when alternate surgical approaches are feasible. For this reason, it is advisable that a competent rabbinic authority confer with the physician in each such instance before a determination is made.
  This writer, following consultation with a number of urologists, would recommend for the consideration of physicians performing such reconstructive surgery and of halakhic scholars a modification of the techniques currently employed. The purpose of the proposed modification is to perform circumcision in a manner compatible with the opinion of those authorities who require excision of the foreskin rather than simply uncovering of the glans.
  At present, the surgeon does not completely sever the foreskin after it is stretched over the exposed portion of the underside of the penile shaft. The reason for leaving a portion of the foreskin attached is to assure an uninterrupted flow of blood. This, in turn, serves to heighten greatly the likelihood that the transfer of the flap will be successful.33<i class="footnote">Such a procedure is termed the transfer of a flap, as opposed to a skin graft, because a portion of the tissue remains attached throughout the transfer. A skin graft involves total detachment of a skin segment for implantation at a different site.</i> The attachment of the foreskin to a portion of the body other than the glans which it covers in the natural state does not appear to constitute a halakhic defect with regard to circumcision even according to the authorities who require excision of the foreskin. Hence grafting of the foreskin elsewhere along the penile shaft poses no problem with regard to fulfillment of the <i>mizvah</i> of circumcision. The sole problem is the failure to excise the base of the flap which has been transferred in this manner.
  It is this writer's suggestion that such excision be performed at a time subsequent to completion of the reconstructive surgery after the surgical wound has completely healed. At the time the skin at the base of the flap, which is the sole remaining site of original attachment, may be incised with a scalpel. Since during the healing process alternate blood supply is established, this excision may be accomplished without compromising the success of reconstructive surgery, provided that this procedure is undertaken subsequent to completion of the healing process. Following incision and complete severance of the original attachment of the foreskin the wound may be reapproximated with sutures. Such reattachment of the foreskin does not appear to present any halakhic problem, particularly since despite reattachment the glans remains totally exposed. Such reattachment is no more than the implantation of the foreskin at a site of the body which the foreskin does not cover in its natural state. This procedure thus provides for circumcision in the optimal manner, i.e., excision of the foreskin rather than merely exposure of the glans, but does not compromise correction of hypospadias since it is performed only after reconstructive surgery has been completed.
  In performing this procedure the epithelial tube constructed on the dorsal side of the penile shaft in place of the missing segment of the urethra should terminate at a point just short of the corona since fulfillment of the <i>mizvah</i> of <i>milah</i> requires that the foreskin be removed from the entire glans including the corona.34<i class="footnote">Cf., <i>Sefer ha-Brit, Likutei Halakhot</i> 261:48 as well as <i>Sefer ha-Brit,</i> second edition, addenda, p. 415.</i> Among the various techniques described in the medical literature some involve bringing the urethra to the base of the glans while others provide for bringing the urethra to the tip of the glans. Termination of the urethra at the base of the glans in no way impedes intercourse or procreation. If, in the opinion of a urologist, it is deemed necessary to extend the urethra beyond the base of the glans—a procedure which, as has been noted, poses an additional halakhic problem—it is imperative that a competent rabbinic authority be consulted before corrective surgery is performed.
  A curious report regarding the frequency of hypospadias is found in <i>Teshuvot Rav Pe'alim, Even ha-Ezer,</i> no. 12. <i>Rav Pe'alim</i> reports that "close to one hundred and fifty" cases of hypospadias occurred in Baghdad each year. In all instances the opening of the urethra was found to be at the base of the corona. This anomaly is described as occurring repeatedly in certain families and as presenting no problem with regard to procreation.
  <i>Teshuvot Even Shoham, Yoreh De'ah,</i> no. 38, posits an obligation devolving upon the father from the moment of birth to make preparations for circumcision on the eighth day. <i>Tirosh ve-Yizhar,</i> no. 97, forbids a procedure even before the eighth day which would result in postponement of circumcision unless the child suffers at least "some pain" as a result of the orthopedic anomaly.
  <i>Avnei Nezer</i>'s argument as it pertains to the <i>mizvah</i> of circumcision, is, however, subject to question on other grounds. <i>Minḥat Hinnukh,</i> no. 5, in his concluding remarks, suggests that a person may be obligated to expend his entire fortune in order to fulfill a <i>mizvah</i> when non-fulfillment entails the penalty of <i>karet.</i> This position is espoused unequivocally by <i>Ma'aseh Bezalel,</i> cited by <i>Sedei Hemed, kellalim, ma'arekhet ha-lamed,</i> no. 107, s.v. <i>ve-katav od sham.</i> Moreover, <i>Minḥat Hinnukh,</i> no. 9, sec. 3, and no. 423, suggests that a person is not obligated to expend his entire fortune in order to fulfill a <i>mizvah</i> if non-fulfillment entails but a single transgression, e.g., <i>mazah</i> or <i>lulav;</i> however, should non-fulfillment involve constant transgression, e.g., <i>mezuzah</i> or, as in our case, circumcision, he may be obligated to expend his entire fortune in order to avoid continual transgression each moment. Both considerations are present with regard to the <i>mizvah</i> concerning circumcision of oneself, but not with regard to circumcision of one's son; see R. Asher Anshel Katz, <i>Naḥal ha-Brit,</i> II, no. 32, p. 161. However, <i>Tirosh ve-Yizhar,</i> no. 127, apparently maintains that a person is obligated to expend his entire fortune in order to circumcise his son as well; see also <i>Sefer ha-Brit; Likutei Halakhot</i> 261:24. In contradistinction, <i>Teshuvot Marḥeshet,</i> I, no. 43, maintains that no greater financial expenditure need be assumed in order to fulfill the <i>mizvah</i> of circumcision than is required for the fulfillment of any other precept.
  See also <i>Sefer ha-Brit,</i> second edition (New York, 5738) addenda, p. 415, who cites a comment of Rashi, <i>Yevamot</i> 78a, stating that an individual is exempt from fulfillment of a <i>mizvah</i> when such fulfillment entails the possible loss of an organ. Rashi's comment is directed specifically to fulfillment of the <i>mizvah</i> of circumcision.
  Delay for the purpose of performing a <i>mizvah</i> in the company of a greater number of people (<i>be-rov am hadrat melekh</i>) is discussed by R. Yekutiel Aryeh Kamelhar, <i>Boker Yizraḥ</i> (Cracow, 5656), <i>Sha'arei Mizraḥ,</i> chapter 3; R. Joshua Horowitz of Djikiv, letter of approbation to <i>Boker Yizraḥ;</i> and R. Yechiel Michal Tucatzinsky, <i>Tekufat ha-Hammah u-Birkhatah</i> (Jerusalem, 5713), pp. 52-60. These discussions focus upon the question of whether <i>birkat ha-ḥammah</i> should be recited at the earliest opportunity or delayed until the entire congregation leaves the synagogue after morning prayers. The latter procedure was favored by <i>Teshuvot Mas'et Binyamin,</i> no. 101, and became the accepted practice. Cf., however, R. Chaim Yosef David Azulai, <i>Maḥazik Berakhah</i> 229:7, and R. Abraham Danzig, <i>Hayyei Adam</i> 63:5, who rule that the blessing should not be delayed.
  
  Chapter XII Women on Synagogue Boards
  
  <i>"And Deborah, a prophetess, the wife of Lapidoth, judged Israel at that time" (Judges 4:4). What was the special quality of Deborah that she judged Israel at that time? … I call upon heaven and earth to bear witness that whether Jew or gentile, whether man or woman, whether manservant or maidservant, the Divine Spirit rests upon him in accordance with the deed which he performs.</i>
  TANNA DE-BEI ELIYAHU RABBAH, 9
  The activities of the feminist movement within the general community have been paralleled within some sectors of the Jewish community by agitation for greater parity for women in matters of religious observance and expression. Rabbinic scholars have long emphasized that the differing ritual obligations which Judaism imposes upon men and women reflect the diverse roles and responsibilities associated with the two sexes rather than the relegation of women to a subordinate or inferior position. Nevertheless, in recent years, the restrictions placed upon women's participation in certain ritual observances and their prerogatives with regard to other observances as well as the philosophical perspectives giving rise to these distinctions have been the subject of wide discussion.
  There is one aspect of communal religious life in which an evident lack of parity exists and in which the governing halakhic considerations are the subject of some controversy. Most synagogues, either by explicit provision of their by-laws or by tacit practice, exclude women from membership on their boards of directors and from positions as officers of the congregation. The halakhic basis of this practice, or the absence thereof, has been examined in two articles which appeared in <i>Ha-Darom.</i> Rabbi Seymour Turk, writing in the Nisan 5735 issue of that publication,1<i class="footnote">This article was subsequently reprinted in Rabbi Turk’s <i>Pri Malkah</i> (New York, 5741), no. 67. See also op. cit., nos. 68-71.</i> argues that there is no basis in Jewish law for the exclusion of women from positions of synagogue leadership. His position is rebutted2<i class="footnote">Another rebuttal by R. Menasheh Klein appears in his <i>Mishneh Halakhot,</i> VII, no. 254.</i> in the Tishri 5736 issue by Rabbi Kasriel Tchursh, of Tel Aviv.3<i class="footnote">This article is reprinted in <i>Shevilin,</i> Kislev 5737.</i>
  Regrettably, neither author cites any of the numerous previous analyses pertinent to this subject. The earliest discussions of the general topic were generated more than half a century ago in what was then Palestine by a raging controversy over granting women suffrage and the right to hold public office. In 1918 women won these rights with respect to elections held by the Jewish Agency but there ensued an impassioned polemic in which leading Palestinian, European and American rabbinic figures espoused opposing views. Many of these diverse positions, originally presented in the form of pamphlets and newspaper articles, are cited briefly by Rabbi Chaim Herschensohn, <i>Malki ba-Kodesh,</i> II, no. 4, in the course of a lengthy exposition of his own permissive view with regard to this matter. Opposing views are cited by R. Yechiel Ya'akov Weinberg, <i>Seridei Esh,</i> III, no. 105.4<i class="footnote">With regard to the question of female suffrage see also <i>Seridei Esh,</i> II, no. 52.</i> An impressive roster of authorities including the Hafez Hayyim, R. Chaim Ozer Grodzinski, R. David Hoffmann (<i>Jeschurun,</i> vol. VI, no. 5-6, lyar-Sivan 5679) and four eminent Palestinian scholars, R. Joshua Leib Diskin, R. Yosef Chaim Sonnenfeld, R. Yechiel Michal Tucatzinski, and R. Yisrael Ze'ev Minzberg (<i>Zot Hukat ha-Torah,</i> Jerusalem, 1920) vigorously opposed permitting women to hold public office.5<i class="footnote">See also R. Eleazar Meir Preil, <i>Sefer ha-Ma’or,</i> nos. 55-56.</i> Permissive views were held by R. Ya'akov Levinson, rabbi of the Chovevei Torah synagogue in Brooklyn (<i>Shivayon ha-Nashim mi-Nekudat ha-Halakhah,</i> New York, 1920),6<i class="footnote">See also Chaim Tzernowitz, <i>Ha-Olam,</i> vol. IX, no. 23, March 19, 1920 and vol. IX, no. 24, March 26, 1920; reprinted in <i>Ha-Ivri,</i> vol. X, no. 16-17.</i> and Rabbi Herschensohn. This position was later endorsed by R. Ben-Zion Uziel, <i>Mishpetei Uzi'el, Hoshen Mishpat,</i> no. 6 Some twenty years later, Rabbi Moses Feinstein adopted a somewhat equivocal, but essentially negative view with regard to the election of women to the presidency of a synagogue. This material, which originally appeared in the Tishri 5721 issue of <i>Ha-Pardes</i> and was amplified in a contribution to the Heshvan-Kislev 5721 issue of <i>Ha-Ma'or,</i> has been reprinted in Rabbi Feinstein's responsa collection, <i>Iggerot Mosheh, Yoreh De'ah,</i> II, nos. 44-45. A strongly negative view was presented by the editor of <i>Ha-Ma'or,</i> Rabbi Meir Amsel, in the Tishri and Heshvan-Kislev 5721 issues of that journal. The current, renewed debate, while contributing but little to the halakhic analysis, broadens the scope of the discussion by adding the dimensions of the very real social and religious concerns of a later generation.
  I. The Sources
  The major halakhic consideration militating against women's eligibility to serve in positions of communal office is Rambam's ruling, Hilkhot Melakhim 1:5: "A woman may not be established as monarch as it is said '[You shall set] over you a king,' but not a queen. Similarly, with regard to all appointments in Israel, only a man may be appointed to them." Commentaries on Rambam give as the source for this ruling the comments of <i>Sifre,</i> Deuteronomy 17:15. Statements similar to that of Rambam are found in the writings of Ramban, Ran, Rashba, Ritva and Rosh, particularly in their commentaries to <i>Shevu'ot</i> 30a, as well as in those of numerous other early authorities, although it is not certain that all of these authorities endorse Rambam's view that offices other than the monarchy are included in this ban.
  Rabbi Feinstein points out that while indeed the comment " 'a king,' but not a queen" occurs in <i>Sifre,</i> it is not clear that the exclusion of women applies to offices other than the monarchy. The same verse contains the admonition, "… from among your brethren shall you set a king over you; you can not put over you a foreign man who is not your brother." Both non-Jews and converts are included in this prohibition. <i>Sifre</i> cites the statement of the Gemara, <i>Yevamot</i> 45b, to the effect that foreigners are excluded not only from kingship but from all other positions of authority as well. Rambam apparently assumes that in interpreting the word "a king" as denoting exclusively a male monarch, <i>Sifre</i> intended to bar women from all other communal appointments as well, just as the latter part of the verse excludes non-Jews not only from the monarchy but also from all other positions of authority. Rabbi Feinstein, however, points out that, in its literal meaning, the passage speaks of the monarchy but not of other offices. The exclusion of foreigners from <i>other</i> appointments stems from a pleonasm, the redundant phrase "<i>som tasim</i>—place you shall place." The repetition of the word "<i>tasim</i>—you shall place" is understood as extending the application of the clause "from among your brethren" and rendering its limitation a condition of all communal appointments. Rabbi Feinstein argues that it would be logical to assume that regulations derived from this pleonasm apply only to foreigners but not to women. Since women are barred from sitting upon the throne by virtue of a literal understanding of the word "king" it should not be assumed that women are excluded from other offices as well.
  Rabbi Herschensohn contends that women cannot be barred even from the monarchy on the basis of this source. He argues ingeniously—but hardly convincingly—that Rambam misunderstood the passage in <i>Sifre</i> which served as the basis for his ruling. In its entirety, the passage in <i>Sifre</i> reads as follows: " 'You shall set [over you],' if he dies you shall appoint another in his stead; 'a king,' but not a queen." Rabbi Herschensohn avers that the intent of <i>Sifre</i> is not to exclude women from kingship but rather to indicate that the king need not necessarily have a consort. In the event that the king dies another king must be appointed. If, however, the queen dies the king is not required to remarry (as must the High Priest if he is to perform the sacrificial rites on the Day of Atonement). The phrase employed by <i>Sifre</i> is "<i>melekh ve-lo malkah</i>." Rabbi Herschensohn contends that the Hebrew term "<i>malkah</i>" denotes the consort of a king. The term "<i>molekhet</i>," claims Rabbi Herschensohn, is employed by Scripture (II Kings 11:3 and II Chronicles 22:12) as the title of a woman who reigns in her own right.7<i class="footnote">In point of fact, the term “<i>malkat Shva</i>” (Queen of Sheba) occurs both in I Kings 10:4 and in II Chronicles 9:12; see <i>Sefer ha-Ma’or,</i> loc. cit.</i> Rabbi Uziel refutes this contention and asserts that the proper Hebrew term for a queen who rules in her own right is indeed "<i>malkah</i>." The term "<i>molekhet</i>" in the passages cited is not a noun to be translated "queen," but rather a verb to be translated "reigns." In any event Rambam's understanding of <i>Sifre</i> cannot be set aside unless there is evidence that early authorities interpreted this source in a different manner. Since such evidence is lacking the philological argument is moot.
  Rambam's ruling is found in yet another source. <i>Pesikta Zutrati,</i> a medieval collection of earlier rabbinic comments and aphorisms, derives the restriction against the appointment of a female monarch from the phrase "you cannot put over you a foreign man." In explaining this phrase, <i>Pesikta Zutrati</i> comments, " 'A man,' but not a woman—from here it is derived that a woman is not appointed to a position of authority over the community." On the basis of this derivation women are excluded from all offices barred to foreigners8<i class="footnote">Rabbi Judah Gershuni, <i>Ha-Torah ve-ha-Medinah,</i> II (Iyar 5710), 74, posits an interesting exception to the prohibition against appointment of women to communal office based upon the selfsame exclusion of foreigners and women from the monarchy. He cites an early authority who questions the propriety of the appointment of Shemiah and Abtalion as heads of the <i>Bet Din</i> since they were the sons of converts as stated by Rambam in his introduction to his <i>Commentary on the Mishnah.</i> [See also R. Jonathan Eibeschutz, <i>Urim ve-Tumim</i> 7:1.] Riva is cited as answering that such appointment is permissible if no equally qualified person of Jewish parentage is to be found. Rabbi Gershuni suggests that, similarly, there may not be a prohibition against appointment of a woman to communal office if she is better qualified for the position than any available male.</i> and indeed <i>Pesikta Zutrati</i> speaks explicitly of any "position of authority." Rabbi Feinstein and Rabbi Herschensohn both question the authenticity of this source. It is, however of interest to note that Rabbi Shlomoh Abraham Wertheimer (<i>Maḥazikei ha-Dat,</i> vol. II, no. 9, 12 Kislev 5680) claims to have found in the Cairo <i>genizah</i> a manuscript edition of <i>Sifre</i> which contains a reading identical to that recorded in <i>Pesikta Zutrati.</i>
  A further source indicating that women are barred from the monarchy is cited by Rabbi Pinchas Estherson in a contribution to <i>Maḥazikei ha-Dat,</i> vol. II, no. 8. The Gemara, <i>Berakhot</i> 49a, cites an opinion which states that Grace after Meals need not include the phrase "and on the kingship of the House of David, your annointed" because this phrase is not applicable to women or slaves. The implication of this statement is that women may not occupy royal office. Rabbi Herschensohn rejects this evidence and asserts that women are not barred from occupying the position of monarch by virtue of a direct biblical prohibition. Only when David assumed the throne did the monarchy become the exclusive prerogative of the House of David. Thereafter women were effectively precluded from serving as monarchs because the office became the legacy of male heirs. Exclusive male succession is evidenced in II Chronicles 13:5 "… for you should know that the Lord, God of Israel, gave the kingdom over Israel to David for ever, to him and <i>to his sons</i> …" Male succession is necessary to assure that the royal office remain a prerogative of the House of David. Since the monarchy is an inherited office and since familial as well as tribal identity is transmitted paternally, failure to exclude female descendants would have resulted in the office of king ultimately passing to heirs not of the House of David, because the children of a female monarch would not be of "her" house but of the "house" of her consort.9<i class="footnote">Cf., however, <i>Minḥat Ḥinnukh,</i> no. 497, who suggests that a woman may indeed serve as monarch in the event that she becomes heir to the throne.</i>
  There is yet another passsage in <i>Sifre</i> which may be cited in support of the position that women are barred from holding public office. This argument was formulated by Rabbi Ritter of Rotterdam in the 12 Kislev 5680 issue of <i>Maḥazikei ha-Dat</i>.10<i class="footnote">See also another article by Rabbi Ritter, “Das Frauenwahlrecht nach der Halacha,” <i>Jeschurun,</i> VI, no. 9-10, Elul-Tishri 5679.</i> Deuteronomy 1:12 records that Moses addressed the community of Israel and declared, "Get for yourselves men, wise, understanding and known to your tribes and I will place them over you." <i>Sifre,</i> puzzled by the seemingly superfluous term "<i>anashim</i>—men," queries, "Would you then have thought women?" and proceeds to interpret the term "<i>anashim</i>" as connoting individuals possessing exemplary qualities. While this exegetical comment recorded in <i>Sifre</i> certainly does not, in itself, serve to establish a halakhic prohibition against appointment of women to positions of communal leadership, Rabbi Ritter argues that the incredulity expressed by the Sages reflects the fact that such a prohibition was known to exist on the basis of some other source. However, in context, the comment of <i>Sifre</i> does not bear out Rabbi Ritter's contention. Moses' quest was not simply for persons to fill positions of communal leadership, but for judges to share the burden of judicial duties. Women are barred from serving as judges11<i class="footnote">See <i>Ḥoshen Mishpat</i> 7:4.</i> but their exclusion from the ecclesiastic judiciary is based upon technical grounds not at all relevant to the question of whether or not they may occupy other communal offices. Since women are barred from serving as judges, <i>Sifre,</i> quite understandably, points out that the term "<i>anashim</i>" is superfluous. There is no reason to assume that <i>Sifre</i> would have expressed the same incredulity with regard to their suggestion of the appointment of women to other offices. Accordingly, no proof may be adduced from this source in establishing a prohibition against women occupying other positions of formal communal leadership.12<i class="footnote">Cf., <i>Mishpetei Uzi’el, Ḥoshen Mishpat</i>, no. 64, sec. 2.</i>
  Rabbi Tchursh advances another consideration which would preclude women from occupying synagogal office. Rema, <i>Hoshen Mishpat</i> 37:22, rules that officers of the <i>kahal</i> (Jewish community) acquire the status of judges and hence all those disqualified from serving as judges are disqualified from holding communal office. Since, in terms of normative Jewish law, women are disqualified from serving as judges, it follows that they may not hold office.
  II. The Arguments
  1. Acceptance as Distinct from Appointment
  Rabbi Uziel adopts a permissive attitude toward the election of women to communal office. He draws attention to <i>Tosafot, Niddah</i> 50a, which records one opinion to the effect that a woman may indeed serve as a judge and that Deborah actually did fulfill this function in an official capacity. If a woman may serve even as a judge it follows that there is no impediment to women holding any other communal office. Thus it appears that at least one authority—<i>Tosafot, Niddah</i> 50a—disagrees with Rambam's position. Moreover, argues Rabbi Uziel, Rambam's restriction of women from holding public office should be understood as referring only to appointments made by the <i>Bet Din.</i> Such appointments do not require communal approval and are limited to males. The community may, however, at its discretion, choose any individual to occupy a position of communal leadership. Occupants of such office exercise authority by virtue of consent or "acceptance" <i>(kabbalah)</i> on the part of the community rather than on the basis of appointment by means of fiat. Since such choices are entirely voluntary insofar as the community is concerned, contends Rabbi Uziel, no restrictions are made upon the person who may qualify. This is also Rabbi Turk's rationale in permitting women to occupy synagogal office.13<i class="footnote">The identical argument was also advanced by Chaim Tzernowitz, <i>Ha-Olam,</i> March 26, 1920.</i>
  However, the notion that the prohibition against women occupying communal office applies only to appointments and not to voluntary "acceptance" is rejected by Rabbis Feinstein, Amsel and Tchursh. While Rabbi Feinstein fails to distinguish between "acceptance" and appointment of a woman insofar as the prohibition is concerned, he nevertheless maintains that <i>Tosafot</i> disputes Rambam's exclusion of women from communal office. Rabbi Feinstein draws attention to other statements of <i>Tosafot</i> (<i>Shevu'ot</i> 29b, <i>Gittin</i> 88b and <i>Baba Kamma</i> 15a) in explanation of Deborah's role as a judge. <i>Tosafot</i> explains that despite the specific exclusion of women from serving as members of a <i>Bet Din,</i> Deborah served as a judge because she was "accepted." Female incumbency of the office of judge presents two problems: 1) the general question of whether women may hold public office; 2) the narrower question of whether a woman may serve as a judge even on an ad hoc basis. The second question poses an entirely different problem which may be restated as follows: How can the decisions of a person disqualified from holding judicial office have binding authority upon litigants? <i>Tosafot</i>'s explanation, argues Rabbi Feinstein, resolves only the question of how the decision can have binding force. It is a well-established principle that persons disqualified from serving as judges may serve in that capacity on an ad hoc basis with the consent of the litigants. Under such circumstances, decisions rendered by judges who have been voluntarily "accepted" by the litigants are fully enforceable. Rabbi Feinstein maintains that "acceptance" is possible only on an ad hoc basis, but is not an operative concept with regard to permanent occupancy of an office by one who is barred from positions of communal authority. Accordingly, reasons Rabbi Feinstein, <i>Tosafot</i> must have been of the opinion that women are excluded only from the monarchy but not from other offices. Thus <i>Tosafot</i> was not at all troubled by Deborah's incumbency in office and found it necessary to explain only how it was possible for her judicial decisions to be binding. According to Rabbi Feinstein's analysis, Rambam's exclusion of women from communal office is disputed by <i>Tosafot.</i>
  Several scholars dispute the contention that <i>Tosafot</i> disagrees with Rambam and permits the appointment of women to public office. Rabbi Amsel argues that there is no basis for the thesis that the community may "accept" the authority of a woman and permit her to occupy an office of leadership. The concept of "acceptance" is found only in the context of legitimization of persons otherwise disqualified from serving as judges. In such instances litigants may voluntarily accept the binding authority of a judge on an ad hoc basis. This, contends Rabbi Amsel, is the meaning of "acceptance" as applied by these authorities with regard to Deborah. Her authority was voluntarily accepted in each individual case by the litigants who appeared before her.
  It may also be inferred from the comments of Radbaz, Hilkhot Melakhim 1:5, that he is of the opinion that a woman cannot be "accepted" for appointment or election to a position of communal leadership. Radbaz seeks to explain how it was possible for Deborah to have been appointed to the office of judge (as distinct from the question of how she could render decisions in particular cases brought before her). Radbaz records several arguments advanced by <i>Tosafot</i> in answering the question of how Deborah's decisions were binding in individual cases, but fails to cite the answer that she was "accepted" by the populace. The omission of this argument is significant. Radbaz obviously maintains that "acceptance" does not vitiate the prohibition against women holding communal office.14<i class="footnote">Cf., R. Ya‘akov Levinson, <i>Shivayon ha-Nashim,</i> pp. 18ff.</i> Rabbi Yisrael Ze'ev Minzberg also argues vigorously that acceptance is a valid procedure only on an ad hoc basis but cannot validate permanent or prolonged incumbency in office. He notes that the phrase "<i>som tasim</i>," from which the prohibition is derived, refers explicitly to induction into office and asserts that there can be no "acceptance" when a transgression is involved. Rabbi Levinson resolves the question with regard to Deborah's functions as a judge by noting that Scripture carefully states, "… and the children of Israel went up to her for judgment" (Judges 4:5) indicating that Deborah did not occupy an official position but that each such act was spontaneous and voluntary on the part of the litigants.
  Rabbi Tchursh also cites evidence to the effect that persons disqualified from holding office cannot be "accepted" by the community. The <i>Mishnah, Kiddushin</i> 76a, indicates that families occupying certain hereditary offices may be considered to be genealogically pure and need no further proof to establish that fact. If, however, queries Rabbi Tchursh, the community may voluntarily "accept" individuals who are otherwise disqualified, how then can incumbency in office, in itself, substantiate a claim of genealogical purity? It follows that a disqualified person may not be voluntarily "accepted" by the community.
  2. The Position of Sefer ha-Hinnukh
  Rabbi Feinstein further argues that at least one other authority disagrees with Rambam's exclusion of women from public office. Communal posts are passed on by means of inheritance. This provision is derived from regulations prescribed with regard to the monarchy which in the Jewish commonwealth is a hereditary office. <i>Sefer ha-Hinnukh,</i> no. 497, expressly states that this provision applies not only to the monarchy but to lesser positions as well. Although with regard to converts, <i>Sefer ha-Hinnukh,</i> no. 498, is careful to state that their exclusion is not limited to the monarchy but extends to lesser offices as well, in citing the law, no. 497, which excludes females from royal office this authority fails to indicate that a similar restriction applies with regard to other communal offices. Apparently, argues Rabbi Feinstein, the author of <i>Sefer ha-Hinnukh</i> was of the opinion that women are not barred from occupying communal offices other than the monarchy. Nevertheless, despite these differing opinions, Rabbi Feinstein explicitly states that Rambam's position alone is sufficient to preclude the appointment of a woman to synagogal office.
  Rabbi Feinstein, however, adds a significant <i>obiter dictum.</i> Citing Rambam, Hilkhot Melakhim 1:7, he strongly emphasizes that evildoers and the nonobservant are prohibited from holding communal office.15<i class="footnote">See also <i>Iggerot Mosheh, Oraḥ Ḥayyim</i>, III, no. 11.</i> The appointment or election of such individuals, declares Rabbi Feinstein, is a more serious infraction than is the naming of a woman to such office. If confronted with a choice between a nonobservant male and an observant female Rabbi Feinstein asserts that one should strive for the appointment of the observant woman.
  3. Election of Women by Women
  Rabbi Levinson formulates another—rather ingenious—argument in support of one manner in which he believes women may be elected to office without violation of the prohibition "a king, but not a queen." <i>Noda bi-Yehudah, Hoshen Mishpat,</i> I, no. 1, and <i>Hatam Sofer, Sotah</i> 41b, followed by <i>Minḥat Hinnukh,</i> no. 497, maintains that the prohibition "You shall set over you a king—'a king' but not a queen" applies only to the act of "<i>simah</i>," i.e., appointment or installation. According to this view, there is no concomitant commandment which would, <i>post factum,</i> prohibit a woman who has been appointed to office from exercising the duties of her office. <i>Sefer ha-Hinnukh,</i> no. 497, declares that the commandment "You shall set over you a king" is a binding obligation only upon males but not upon females. Rabbi Levinson argues that if women are not commanded to establish a monarchy and, by extension, are not commanded to establish other communal offices, they are not subject to the prohibition against appointing a female to such office. Since women are exempt from the duty imposed by this verse they are exempt also from the limitations placed upon fulfillment of that duty. However, argues Rabbi Levinson, there is no evidence whatsoever indicating that women are forbidden voluntarily to appoint or to participate in the appointment of a king. Consequently, avers Rabbi Levinson, they are under no constraint which would prevent them from appointing a queen or other female official. Thus, argues Rabbi Levinson, women may legitimately vote for women representatives as their delegates to serve on communal bodies. Since there is no prohibition against women holding office, but only against their appointment, this prohibition may be circumvented, Rabbi Levinson contends, by giving women the power to vote. Since women are not prohibited from electing other women, women may be elected by votes of other women to synagogue boards or similar offices.
  It should, however, be noted that not all authorities agree that there is no prohibition against women serving in (as distinct from being appointed to) communal office. <i>Tosafot, Sotah</i> 41b, is apparently of the opinion that not only may a woman not be appointed to office, but that a woman, if appointed, is also constrained from exercising the powers of office. <i>Tosafot</i> indicates that failure to protest the exercise of official prerogatives by one who is excluded from appointment to office constitutes a transgression. Failure to protest the exercise of prerogatives of office (as distinct from the original appointment) can logically constitute a transgression only if the exercise of such prerogative is in itself a violation of Halakhah. It is thus difficult to interpret these comments of <i>Tosafot</i> in a manner compatible with the thesis of <i>Noda bi-Yehudah, Hatam Sofer</i> and <i>Minḥat Hinnukh</i>.16<i class="footnote">Cf., <i>Shivayon ha-Nashim</i>, p. 27.</i>
  In this context it is of interest to note a recent pronouncement by a member of the London <i>Bet Din.</i> In Britain's United Synagogue, whose constituent synagogues are subject to the ecclesiastic authority of the <i>Bet Din</i> and the Chief Rabbi, women are not permitted to occupy synagogal office.17<i class="footnote">In a statement issued on January 9, 1951, the late Chief Rabbi, Sir Israel Brodie, ruled that women are ineligible to hold synagogal office. This restriction is incorporated in the by-laws of the United Synagogue. The ruling of Rabbi Brodie was reaffirmed by the incumbent Chief Rabbi, Immanuel Jakobovits, in a statement issued by the Office of the Chief Rabbi, dated December 5, 1977. Rabbi Jakobovits, while barring women from membership on Boards of Management, suggests that “Synagogue Councils” with women members be established to deal with “spheres of education, youth, cultural and other activities.” The authority and role of such Councils is not defined in this statement and hence it is difficult to assess the halakhic problems, if any, with regard to female membership on such Councils.</i> In a statement to the <i>Jewish Chronicle</i> (May 16, 1975), Dayan Morris Swift declared that it is "halakhically wrong" for women to serve on synagogue boards of management, even if elected by other women members. A similarly negative view was voiced by Rabbi Dr. Benjamin Gelles, rabbi of London's Finchley Synagogue (<i>Jewish Chronicle,</i> May 23, 1975).
  4. Communal Office Under Contemporary Conditions
  Rabbi Turk alludes to a distinction which may be drawn between contemporary synagogue office and communal offices which are the subject of discussion in rabbinic sources. The point, which is made briefly, requires some amplification. As has been noted, the paradigm case for exclusion of women from office is the monarchy. Women (and converts) are barred from holding lesser offices as well because such offices enjoy in miniscule form powers conferred upon the monarch. The monarch governs by royal fiat and does not require the consent of the governed. The primary attribute of his office is that of coercive authority. Other offices to which specific reference is made by the Gemara as being closed to converts have as their prerogative the power of coercion, e.g., the office of inspector of weights and measures (<i>Kiddushin</i> 76b). A convert may not act as a bailiff or <i>shoter,</i> even though such officials merely carry out the directives of the <i>Bet Din</i> because bailiffs are empowered to use force in discharging their duties. Indeed, the term "<i>serarah</i>" used in this context implies "lordship" or unilateral enforcement of law or edict by one in a position of authority. <i>Tosafot</i> and Rosh, in their commentaries to <i>Yevamot</i> 101b (followed by <i>Shakh, Yoreh De'ah</i> 269:15), both state explicitly that the exclusion of a convert from public office is limited to exclusion from positions of authority involving the power of coercion which is the hallmark of monarchy. It would appear that the same criterion is applicable in determining offices from which women are barred. Nowhere is there an indication that women are to be excluded from purely honorific positions.18<i class="footnote">This is true for membership in deliberative and advisory bodies as well. It is of interest to note that the name of the Ḥafeẓ Ḥayyim appears together with the names of a number of women on a roster of delegates to a “Pan-Russian Jewish Conference”; see <i>Sefer ha-Ma’or,</i> no. 56. See, however, the letter of R. Chaim Ozer Grodzinski, <i>Aḥi‘ezer: Koveẓ Iggerot,</i> ed., Aaron Sorasky (Bnei Brak, 5730), I, no. 152, in which he declares that he and other prominent rabbinic figures served as delegates to such conferences solely because of the grave need to counter the attempts of secularists to wreak havoc upon the spiritual welfare of the community; see, infra, note 20.</i> Under contemporary conditions, synagogue officials and boards of directors have no power of coercion whatsoever. They rely upon the good will of synagogue members for compliance. Although Rema stipulates that officials of the <i>kahal</i> must meet the selfsame requirements as judges, it must be remembered that the officials to whom Rema refers were empowered to levy and collect taxes. Assessment of the rate to be paid by each householder does indeed involve a judicial function. In times gone by these officials could exact taxes and enforce their will in other areas as well. Today, since there exists no autonomous <i>kehillah</i> structure, no decision can be enforced other than by means of voluntary compliance; even assessment and collection of synagogue dues is contingent upon the good will of the membership. Under such circumstances the officers of a congregation do not exercise even an approximation of royal power since they cannot in any way compel compliance.19<i class="footnote">Chaim Tzernowitz, employing a similar line of reasoning, goes beyond this position in asserting that the prohibition is limited to executive or administrative offices but not to membership in legislative or parliamentary bodies since members of such bodies merely enact laws but do not enforce them.</i> If women are excluded only from communal positions of authority in which the office-holder is endowed with coercive authority it may then be argued that, under present conditions, women are not precluded from holding synagogal office.20<i class="footnote">Cf., however, the view of R. Chaim Ozer Grodzinski, <i>Aḥi‘ezer: Koveẓ Iggerot,</i> ed. Aaron Sorasky (Bnei Brak, 5730), I, no. 151, opposing participation of women in mixed bodies for reasons of tradition and <i>ẓni‘ut.</i></i>
  While adducing no evidence for his contention, Rabbi Levinson advances an interesting argument in support of the thesis that the prohibition against the appointment of a female monarch is not applicable to contemporary political or communal office. Rabbi Levinson argues that the prohibition, while encompassing not only the monarchy but lesser offices as well, applies only to those offices whose holders enjoy the prerogatives of lifetime incumbency and hereditary succession. In the opinion of Rabbi Levinson, the verse " … that he may prolong his days in his kingship, he and his children" (Deuteronomy 17:20) serves not merely as a description of the nature of royal office but also as a limitation upon the prohibition "a king, but not a queen" contained in the earlier verse. According to this argument, election or appointment of a woman to a term of office for a specific number of years is not at all proscribed.
  The halakhah "a king, but not a queen" appears to be a reflection of the religio-social ideal "<i>Kol kevudah bat melekh penimah</i>—The entire glory of the king's daughter is within" (Psalms 45:14). Various explanations have been offered in attempts to formulate the philosophical basis of this ideal. Such explanations are based upon an analysis of the concept of <i>zni'ut</i> in all its ramifications. A review of these formulations is beyond the scope of the present discussion. Suffice it to say that, the ideal of "<i>kol kevudah</i>" notwithstanding, women were never barred from seeking gainful employment or from engaging in commerce. Indeed, there are virtually no halakhic restrictions placed upon a woman seeking a career outside the home.
  Nevertheless, the <i>kol kevudah</i> concept does find expression in Halakhah. This expression is perhaps more a matter of form than of substance, but is significant nonetheless. It would appear that the restriction "a king, but not a queen" is designed to give formal recognition to <i>kol kevudah</i> as an ideal, if not a norm. It is precisely in the public arena, in the holding of public office and thereby commanding constant public attention, that the Torah saw the greatest possible violation of feminine <i>zni'ut.</i> Of course, this restriction in no way guarantees the approximation, much less the realization, of this ideal, but it does serve to emphasize the principle as a halakhic desideratum and as such the form is as significant as the substance.
  It must be emphasized that the issue of membership of women on synagogue boards <i>is</i> a halakhic question. To be sure, there are diverse views but, as is the case in all other areas of Halakhah, the decision for any specific synagogue must be made only by that synagogue's <i>mara d'atra.</i> The rabbi who is both qualified to act as a halakhic decisor and firmly convinced of the cogency of the arguments of the permissivists is privileged to act in accordance with his views. The rabbi who is unconvinced by these arguments, impressed by the number and eminence of the non-permissivists, or who feels that a breach of accepted practice may genuinely offend the religious sensibilities of some congregants may wish to find a solution which will grant the substantive desire for feminine representation and participation in decision-making without doing violence to halakhic forms. The participation and involvement of women in the synagogue is certainly to be encouraged and maximized. Given a spirit of good will and cooperation, substantive accommodation of the needs and desires of women can be achieved even within existing parameters.
  
  Chapter XIII The Prohibition against Intermarriage
  
  <i>There are three [persons] who drive away the Shekhinah from the world…. [The second is] he who cohabits with the daughter of a gentile…. The leaders of the people in each generation are punished for this transgression if they are aware [of it] and are not zealous, for this obligation is incumbent upon them, [viz.,] to be zealous on behalf of the Holy One, blessed be He.</i>
  ZOHAR, SHEMOT 3b
  Among Jews no practice is more widely abhorred than is intermarriage. Commitment to take as a marriage partner only a fellow member of the Jewish community is not only a matter of religious obligation but the bedrock of Jewish ethnic identity.
  A popular folk saying observes that wherever there are two Jews, there are three opinions. It seems that in the area of Halakhah the number of opinions often increases geometrically according to the number of authorities writing about or discussing any given topic. In the area of intermarriage, this is simply not the case. There is little, if any, disagreement, and there are very, very few hairs to split.
  There is a well known anecdote about a modern synagogue that was wont to conduct annual meetings. Each year the chairman of each of the standing committees was called upon to deliver a report. Year after year, the chairman of the Ritual Committee was called upon, and year in, year out, he stood up and delivered a two word report: "<i>Men davent</i>—we pray." Then, one year, after the composition of the congregation had undergone a radical change, he rose at the annual meeting and delivered a three word report. On that occasion he declared: "<i>Men davent nisht!</i>" The question of intermarriage can be dealt with quite briefly: "<i>Men tor nisht!</i>—It is not permitted!" In reality there is very little more to say about the subject. "<i>Ha-mefursamot einan zrikhot ra'ayah</i>—Matters which are well known do not require substantiation."
  Yet, although aversion to intermarriage is universally recognized, the sources and nature of the halakhic prohibitions surrounding intermarriage are less widely known, even by those thoroughly dedicated to a Jewish life-style. Indeed, while Jewish law clearly and unequivocally forbids intermarriage, the biblical source of this prohibition has been a matter of considerable debate and discussion among rabbinic authorities over the centuries.
  There are grounds for assuming the existence of an interdiction against intermarriage pre-dating the Sinaitic covenant. This is manifest in the biblical narrative concerning the incident which occurred between Dinah, the daughter of Jacob, and Shechem, the son of Hamor, as well as the subsequent narrative concerning Tamar, the daughter-in-law of Judah. The Torah censures the actions of Shechem in harsh terms: "<i>Ki nevalah asah be-Yisra'el</i>—He has committed a heinous deed in Israel; <i>ve-khen lo ye'aseh</i>—and such a deed cannot be sanctioned" (Genesis 34:7). The Brisker Rav, Rabbi Yitzchak Ze'ev Soloveitchik, examines this verse and offers an illuminating interpretation. Given the structure of society in antiquity, Shechem's action was not entirely unparalleled. It must be remembered that Hamor ruled the area as an absolute monarch. Shechem was a member of the aristocracy, a princeling, and, quite apparently, could do as he wished with any damsel in his father's domain. Why, then, is the deed deemed so heinous? The Brisker Rav points out that the Gemara, <i>Avodah Zarah</i> 36b, declares that at an early point in history, the Court of Shem, the son of Noah, promulgated a decree against intermarriage. When Tamar is found to be with child, Judah passes judgement: "Bring her forth, and let her be burnt." Tamar is condemned to death but her punishment is, in terms of Halakhah, incongruous. She was ostensibly a widow at the time. Fornication is not a capital transgression. The Gemara indicates that Tamar was punished, not for simple harlotry, but for the infraction of having violated the edict of the <i>Bet Din</i> of Shem, i.e., for apparently consorting with a gentile. The Gemara declares that even in the pre-Sinaitic era there existed a prohibition forbidding members of the family group from which stemmed the progenitors of the people destined to become the community of Israel from intermarrying with members of a gentile nation. From the early dawn of history the people of Israel sought to preserve their ethnic purity and legislated against intermarriage.
  A decree of the Court of Shem does not, however, establish a biblical prohibition. Subsequently, we find Ezra and later Nehemiah decrying intermarriage, but in neither instance do we find an explicit reference to a biblical prohibition. Nehemiah goes so far as to pronounce a curse: "In those days also saw I the Jews that had married women of Ashdod, of Ammon, and of Moab … And I contended with them and cursed them …" (Nehemiah 13:23-25). Since Nehemiah pronounces a curse upon those who behave in this manner, there is strong reason to assume that such conduct must have been banned by virtue of an explicit prohibition. The question then is: where is the scriptural locus of the prohibition concerning intermarriage?
  I. Lo Titḥaten Bam
  1. Rambam
  The most obvious source of this ban is Deuteronomy 7:3: "Neither shalt thou enter into marriage with them; thy daughter thou shalt not give unto his son, nor his daughter shalt thou take unto thy son. For he will turn away thy son from following Me, that they may serve other gods." However, the source which appears to be the most evident is not necessarily the most correct. The exegetical problem attendant upon this apparently explicit reference is whether the prohibition encompasses only the "Seven Nations" who at that time inhabited <i>Erez Yisra'el,</i> or whether it includes all gentile nations as well. This verse is immediately preceded by an introductory sentence in which the Torah states, "When the Lord thy God shall bring thee into the land whither thou goest to possess it, and shall cast out many nations before thee … seven nations greater and mightier than thou." The prohibition occurs within a specific historic context, viz., entry into the promised land and conquest of the seven indigenous nations who inhabited <i>Erez Yisra'el.</i> These seven nations are specifically enumerated in this verse. It is in this context that the Torah admonishes, "Neither shalt thou enter into marriage with them."
  The Gemara, <i>Avodah Zarah</i> 36b, records a difference of opinion regarding precisely this point. The Gemara states explicitly, "The prohibition against marrying non-Jewish women is biblical as it is written, 'Neither shalt thou enter into marriage with them.' " According to the Sages, the biblical prohibition is limited to the Seven Nations specifically enumerated in this verse. According to the opinion of the Sages, marriage with members of other gentile nations is forbidden only by virtue of rabbinic decree. R. Shimon ben Yoḥai disagrees with the Sages and maintains that the concluding phrase of this verse, "For he will turn thy son from following Me," serves to broaden the prohibition to encompass marriage with members of other nations as well. R. Shimon ben Yoḥai reasons that Scripture explicitly states the rationale underlying the prohibition as a means of extending the ban to encompass all non-Jews. The fear expressed in this explanatory phrase certainly is not limited to marriage with a member of one of the Seven Nations, but is a valid consideration with regard to marriage between a Jew and any non-Jew.
  In examining Rambam's codification of this law in his <i>Mishneh Torah, Hilkhot Issurei Bi'ah</i> 12:1, we find that he rules in accordance with the opinion of R. Shimon ben Yoḥai:
  A Jew who cohabits with a non-Jewish woman of any of the gentile nations in the manner of matrimony, or a Jewish woman who cohabits with a non-Jew in the manner of matrimony incurs the biblical punishment of lashing, as it is written, "Neither shalt thou enter into marriage with them; thy daughter thou shalt not give unto his son, nor his daughter shalt thou take unto thy son." Both the Seven Nations and all [other] nations are included in this prohibition. This is made explicit through Ezra, "And that we would not give our daughters unto the peoples of the land, nor take their daughters for our sons." (Nehemiah 10:31)
  The quotation of Nehemiah 10:31 is obviously intended to establish that the prohibition against intermarriage applies to all gentile nations. In ruling in this manner, Rambam follows the opinion of R. Shimon ben Yoḥai who maintains that the prohibition, "Neither shalt thou enter into marriage with them," is applicable not only to the Seven Nations indigenous to the land of Canaan, but applies to all non-Jews equally.
  Rambam's formulation of this ruling, however, raises a separate problem with regard to the question of intermarriage. He declares that cohabitation is biblically forbidden, but he qualifies this statement by adding that only cohabitation <i>derekh ishut</i>—in the manner of matrimony—is forbidden. Rambam was obviously troubled by the usage of the phrase "<i>lo titḥaten</i>—thou shalt not enter into marriage" in conjunction with the prohibition against intercourse between a Jew and a non-Jew. The use of the phrase "<i>lo titḥaten</i>" in this context is a halakhic anomaly. It is axiomatic that there can be no <i>ḥitun,</i> i.e., marriage in the halakhic sense, between a Jew and a non-Jew. The institution of <i>kiddushin</i> (matrimony) as a category of Halakhah has no application insofar as non-Jews are concerned. A marriage contracted between a Jew and a non-Jew requires no <i>get</i> (religious divorce) for its dissolution, since it is a nullity <i>ab initio</i>. <i>Kiddushin,</i> with all its halakhic ramifications, applies only to a matrimonial relationship in which both parties are members of the Jewish faith-community. Yet, paradoxically, the Torah, in speaking of forbidden intercourse between a Jew and a non-Jew, states, "Thou shalt not enter into <i>marriage</i> with them." Rambam resolves this difficulty by postulating that this term is not to be understood as a reference to matrimony in the narrow legal sense, but as a term designed to describe the conjugal context within which cohabitation with a non-Jew is proscribed. Thus the prohibition <i>lo titḥaten bam</i> is understood as referring not simply to any act of cohabitation, but rather to cohabitation "<i>derekh ishut</i>," i.e., in a manner analogous to matrimony, viz., within the context of a permanent conjugal relationship.
  Rambam's position is very clear. Intermarriage between a Jew and any non-Jew is biblically proscribed; cohabitation under those conditions constitutes the violation of a negative commandment and carries with it the penalty of corporal punishment. The biblical prohibition is limited to cohabitation which takes place within the context of a permanent conjugal relationship, a state which, from the point of view of Jewish law, is roughly analogous to the secular notion of a common law marriage.
  2. Tur
  <i>Tur Shulḥan Arukh, Even ha-Ezer</i> 16, disagrees with Rambam with regard to two salient points. Firstly, the <i>Tur</i> disagrees with Rambam in maintaining that the definitive ruling of Halakhah, and hence the normative position of Judaism, is not in accordance with the opinion of R. Shimon ben Yoḥai, but rather is in accordance with the opinion of the Sages. Accordingly, the prohibition "Neither shalt thou enter into marriage with them" is to be understood as referring only to intercourse with members of the Seven Nations who inhabited <i>Erez Yisra'el</i> at the time of entry into the promised land, but is not applicable to members of other non-Jewish nations. Secondly, the <i>Tur</i> understands the words, "<i>lo titḥaten</i>—thou shalt not marry" quite literally as referring to actual <i>ḥitun,</i> i.e., marriage in the technical halakhic sense of the term. Since there cannot be a marriage, in the halakhic sense of the term, between a Jew and a non-Jew, the position of the <i>Tur</i> is that the prohibition must of necessity be limited to marriage between a Jew and a member of the Seven Nations who has converted to Judaism. The <i>Tur</i> thus understands the prohibition "<i>lo titḥaten</i>" as referring to a) the Seven Nations and b) the Seven Nations <i>be-gerutan</i>—only subsequent to their conversion. According to the <i>Tur,</i> the prohibition "Neither shalt thou enter into marriage with them" applies only after one of the members of the seven indigenous nations of the land of Canaan has converted to Judaism. Prior to conversion the prohibition "<i>lo titḥaten bam</i>" simply does not apply. Hence the <i>Tur</i> declares:
  It appears to me, that [this prohibition] applies only to the Seven Nations for we do not rule in accordance with R. Shimon ben Yoḥai. And even with [members of] the Seven Nations there are no lashes for [the transgression] of <i>lo titḥaten</i> other than after they have converted. However, while they are gentiles, "marriage" is not possible.
  Nevertheless, the severity of the stricture against intermarriage tends to indicate that, even according to the <i>Tur,</i> some form of biblical prohibition against intermarriage with non-Jews who are not members of the Seven Nations must exist. The question to be resolved is the nature of the biblical prohibition.
  II. Kana'im Poge'im Bo
  1. The Prohibition
  Although the prohibition is not expressly formulated in Scripture, the action of Phinehas, described in Numbers 25:6-8, serves to establish that cohabitation with a non-Jewess is proscribed, at least under some circumstances. The concept of "<i>kana'im poge'im bo</i>" is one which is well known to students of Halakhah. Halakhah prescribes that, subject to certain limitations, a Jew who is apprehended <i>in flagrente delicto</i> in the act of cohabiting with a non-Jewess may be executed summarily. Translated literally, "<i>kana'im poge'im bo</i>" means that zealots may take justice into their own hands and may execute the transgressor on the spot. There are, to be sure, many halakhic fences which serve to limit implementation of this principle. First, punishment may be meted out only while the act is actually in the course of being performed. According to some authorities, the usual <i>hatra'ah</i> or warning must be administered.1<i class="footnote">Rabbi Moses Feinstein, <i>Iggerot Mosheh, Even ha-Ezer,</i> I, no. 38, citing Rashi, <i>Sanhedrin</i> 81b, and the reported view of R. Shlomoh Heiman, declares that such action is permitted only to “zealots,” defined as <i>kesherim</i> whose motives are entirely noble and whose intentions are exclusively for the sake of Heaven.</i> Most significantly, the rule which applies is: "<i>Halakhah ve-ein morin ken</i>"; while the punishment is justified, no one may be instructed to carry it out. Nevertheless, a person who acts in accordance with this principle acts in accordance with Halakhah. The Gemara, <i>Sanhedrin</i> 82a, describes Phinehas' action with regard to Zimri as having been based upon this principle. Zimri was engaged in an act of fornication with a Midianite woman and, while yet in the midst of the coital act, was executed by Phinehas.
  It certainly stands to reason that a breach of law punishable by death at the hands of a zealot should not go completely unpunished in the absence of a zealot who feels called upon to act summarily. The Gemara, <i>Sanhedrin</i> 82a, states that the punishment for such a deed is <i>karet,</i> death at the hands of Heaven. In support of this statement the Gemara cites the verse, "Judah hath dealt treacherously, and an abomination is committed in Israel and in Jerusalem; for Judah hath profaned the holiness of the Lord which he loveth, and hath married the daughter of a strange god. May the Lord cut off to the man that doeth this" (Malachi 2:11-12). In rabbinic literature this punishment is referred to as <i>karet me-divrei kabbalah,</i> death at the hands of Heaven as recorded in the words of the Prophets.
  The punishment to which Malachi refers is incurred not only by one who is guilty of public cohabitation with a member of the Seven Nations, but also by one who cohabits with <i>any</i> gentile woman. It is clear that this punishment applies to cohabitation with any gentile woman for two reasons:
  1. The narrative concerning Phinehas, described as an application of the principle of <i>kana'im poge'im bo,</i> involved Cozbi, the daughter of Zur, a Midianite woman. Midian was not one of the Seven Nations indigenous to the land of Canaan. The Gemara states that all persons subject to execution at the hands of <i>kana'im</i> are culpable with regard to <i>karet.</i> It follows, therefore, that death at the hands of Heaven is incurred by one who consorts with any non-Jewess.
  2. Malachi inveighed against intermarriage in a historical epoch during which the Seven Nations were no longer extant. Sennacherib, king of Assyria, conquered virtually all of the civilized world of his day and in order to solidify his rule engaged in massive population exchanges (<i>Yadayim</i> 4:4; <i>Berakhot</i> 28a; and <i>Yoma</i> 54a). As a result, the Seven Nations, which had originally inhabited Canaan, are no longer ethnically identifiable. Malachi, who lived much after the reign of Sennacherib, could not possibly speak of the Seven Nations as contemporaneous peoples. Therefore, it is clear that, in admonishing his contemporaries and in announcing that the punishment of <i>karet</i> would be the fate of those who consort with gentile women, Malachi refers to all gentiles, not merely to members of the Seven Nations.
  The problem, then, is how is it possible to establish a biblical prohibition on the basis of a prophetic verse? The commandments and legal strictures of Judaism are contained in the Mosaic code as recorded in the Pentateuch. The Gemara, <i>Shabbat</i> 104a, unequivocally declares that the Prophets had no license to establish novel prohibitions which are not contained in the Pentateuch; they may make no additions to the Law revealed at Sinai. Therefore, since Malachi describes cohabitation with a non-Jewess as punishable by death at the hands of Heaven, it follows that a biblical prohibition must have already existed.
  Rambam, in his <i>Commentary on the Mishnah, Sanhedrin</i> 9:6, and Ramban, in his commentary on Rambam's <i>Sefer ha-Mizvot,</i> the second <i>shoresh,</i> resolve this problem by explaining that there did indeed exist a prohibition prior to Malachi's exhortation. This prohibition, although unrecorded in the Pentateuch, has the status of a <i>halakhah le-Mosheh mi-Sinai,</i> one of the manifold ordinances handed down to Moses at Mount Sinai. As such, this prohibition constitutes an intrinsic component of the Oral Law. Thus, the prohibition against cohabitation with a non-Jewess is endowed with the status of a biblical law since it was transmitted by Moses to the community of Israel. Malachi's admonition served merely to record what, until that point in Jewish history, had been an oral tradition. The identical thesis, although in a different context, is set forth by the Gemara, <i>Sanhedrin</i> 22b.
  2. Public and Private
  It has been established that cohabitation with a gentile woman is, at least under some circumstances, forbidden by virtue of divine command. The question requiring further analysis is whether the prohibition with regard to cohabitation is limited to acts of public fornication or whether it emcompasses private acts as well. The halakhic category of <i>kana'im poge'im bo</i> applies only to instances of public fornication. The zealot is granted license to conduct a summary execution only if the culpable act is a brazen and public one. The zealot dares not act in this manner if the transgression is performed in private. The question, then, is whether the punishment of <i>karet</i> to which the Gemara and Malachi refer, and the prohibition for which this punishment is incurred, are similarly limited to instances of public fornication, or whether death at the hands of Heaven as well as the prohibition for which such punishment is decreed, are attendant upon private acts of fornication as well.
  It is precisely this point which is the subject of considerable dispute among halakhic authorities. Two early authorities, Rambam and <i>Nemukei Yosef</i> in their commentaries on <i>Sanhedrin</i> 82a as well as <i>Sefer ha-Hinnukh,</i> no. 420, followed by <i>Helkat Meḥokek,</i> in the latter's commentary on <i>Even ha-Ezer</i> 16:5, and apparently by Rema as well, maintain that the punishment of <i>karet</i> is limited to acts committed in public. Another early authority, Rabbenu Nissim, in his commentary on <i>Sanhedrin</i> 82a, states that he is in doubt with regard to this point. <i>Bet Shmu'el,</i> in his commentary on <i>Even ha-Ezer</i> 16:4, cites <i>Derishah</i> and <i>Baḥ</i> in remarking that insofar as the biblical prohibition and the prescribed punishment are concerned, there can be no difference between public and private acts. Insofar as the provision of <i>kana'im poge'im bo</i> is concerned, the zealots may take the law into their own hands only in matters affecting public morality; but, insofar as the intrinsic prohibition is concerned, there exists no essential difference between a public act and a private one. Accordingly, rules <i>Bet Shmu'el,</i> the prescribed punishment for cohabitation with a non-Jewish woman is death at the hands of Heaven, whether the act is committed in public or in private.
  However, insofar as the prohibition attendant upon intermarriage is concerned, this controversy is entirely academic. This highly significant point is made by the nineteenth-century authority, R. Moses Schick, in two separate responsa, <i>Teshuvot Maharam Schick, Even ha-Ezer,</i> nos. 37 and 155, and by his contemporary, R. Zevi Hirsch Chajes, in a footnote appended to the latter's <i>Minḥat Kena'ot</i> (<i>Kol Sifrei Maharaz Hayes,</i> II, 998). The principle established independently by these authorities is that cohabitation within the context of matrimony, as that term is conventionally understood, must be considered to be a public act. The rationale underlying this thesis is not at all difficult to fathom. It is a principle of Halakhah that certain acts, while ostensibly performed in private, are nevetheless considered to be public in nature. Thus, with regard to certain aspects of the law of testimony it is not necessary for witnesses to have direct knowledge of the sexual act itself; witnesses testifying to seclusion of the two parties are deemed ipso facto to be witnesses to the sexual act. The Gemara, <i>Sanhedrin</i> 74b, describes Esther's cohabitation with Ahasuerus as a public act. Although there is no reason for assuming that Ahasuerus violated prevailing norms of modesty in his relationship with Esther, the Gemara finds it necessary to seek grounds justifying what is described as public adultery on the part of Esther. Here, then, is clearly a case of an ostensibly private act which is halakhically categorized as a public act.
  The reason for this categorization is quite simple. A Jew is obligated to suffer martyrdom rather than renounce his faith-commitment. He is therefore obliged to allow himself to be killed rather than permit himself to be coerced into committing a transgression in public when such an act is construed as a renunciation of Jewish teaching and practice. This obligation is mandated by the commandment concerning <i>kiddush ha-Shem,</i> sanctification of the Divine Name. It is, of course, necessary to establish the precise definition of a "public" act for purposes of this obligation. The commandment is couched in the words, "And I shall be sanctified among the children of Israel" (Leviticus 22:32). On the basis of talmudic exegesis, the Gemara, <i>Sanhedrin</i> 74b and <i>Berakhot</i> 21a, establishes that a Jew is obligated to sacrifice his life rather than profane the Name of God in this manner only if it is demanded that the act of profaning the Name of God be performed publicly in the presence of the "congregation." The term "<i>edah</i>" or congregation is defined as denoting a group of ten Jews. An act is, therefore, considered to be performed in public if it is witnessed by ten people. Nevertheless, <i>Shakh, Yoreh De'ah</i> 154:5, rules that for purposes of the <i>mizvah</i> of sanctification of the Divine Name, an act is considered to be a public one not only if it is witnessed by ten persons, but even if the act is merely <i>known</i> to ten people. A transgression of which ten people have knowledge constitutes a "public" act of profanation of the Divine Name.
  Of crucial significance in defining the nature of the prohibition against cohabitation with gentile women is the terminology employed by Malachi in castigating those who transgressed in this manner. Malachi, assailing the abominable nature of this deed, declaims "… for Judah hath profaned the holiness of the Lord." This sexual relationship is described by the prophet as <i>ḥillul ha-Shem,</i> profanation of the Divine Name, and hence as being tantamount to a renunciation of Judaism. Accordingly, both <i>Maharam Schick</i> and R. Zevi Hirsch Chajes argue that, even assuming that the prohibition against cohabitation with a non-Jewess is limited to public acts, consorting with a gentile woman within the context of a matrimonial relationship constitutes the transgression of a biblical prohibition. Both authorities argue that intermarriage, despite the absence of sexual acts of a public nature in the literal sense, constitutes a public profanation of the Divine Name. The essence of matrimony is the establishment of a permanent conjugal relationship between two individuals. Cohabitation between marriage partners is presumed as a matter of course and hence is a matter of public knowledge. Therefore, marriage to a non-Jewish woman is tantamount to public cohabitation even though no person has seen the couple actually engaged in a sexual act. For this reason, cohabitation within the context of intermarriage constitutes a violation of a biblical prohibition punishable by death at the hands of Heaven according to all authorities, including those who maintain that private sexual acts do not fall within the parameters of this prohibition.
  3. Women
  One further point requires clarification. The provision for <i>kana'im poge'im bo</i> applies only to the case of a Jewish male who consorts with a non-Jewish female. What is the status of a Jewish woman who intermarries or publicly consorts with a non-Jewish male? Ramban, in his <i>Milḥamot ha-Shem, Sanhedrin</i> 74b, declares that the punishment of <i>kana'im poge'im</i> does not apply to a Jewish woman who cohabits with a gentile. A number of early authorities (including Rambam, cited by Rabbenu Nissim, <i>Yoma</i> 82a; <i>Hiddushei ha-Ran, Sanhedrin</i> 74b; <i>Nemukei Yosef, Sanhedrin</i> 74b; and <i>Tosafot, Kiddushin</i> 75b) maintain that there is no <i>ḥiyyuv karet</i> associated with such an act, i.e., that the act is not punishable by death at the hands of Heaven and, indeed, is not the subject of a biblical proscription.2<i class="footnote">See also <i>Noda bi-Yehudah</i>, II, <i>Even ha-Ezer</i>, no. 150. and R. Israel Jacob Algazi, <i>Kehillat Ya‘akov, Tosafot de-Rabbanan</i>, sec. 77.</i> However, <i>Hagahot Mordekhai, Yevamot</i> 4:108, asserts that <i>kana'im poge'im</i> applies to a Jewess who consorts with a gentile no less than to a male Jew who consorts with a non-Jewess.3<i class="footnote">See <i>Teshuvot Bet Yiẓḥak, Even ha-Ezer,</i> I, no. 29, sec. 1, who maintains that this is also the position of <i>Tosafot, Yevamot</i> 16b. See also the similar opinion of <i>Maharik, shoresh</i> 175, and R. Joseph Saul Nathanson, note to <i>Noda bi-Yehudah,</i> II, <i>Even ha-Ezer,</i> no. 150.</i> <i>Hazon Ish, Even ha-Ezer</i> 4:10, expressly indicates that, according to this opinion, the punishment for a Jewess who consorts publicly with a gentile is identical in every respect to that of a Jewish male who consorts with a non-Jewish female.4<i class="footnote">See also R. Ezriel Hildesheimer, <i>Teshuvot Rabbi Ezri’el, Yoreh De‘ah,</i> no. 189.</i>
  <i>Maharam Schick</i> demonstrates that even those previously cited early authorities who maintain that a Jewish woman who consorts with a gentile does not incur the penalty of <i>karet</i> would nevertheless agree that, despite the absence of this severe punishment, the act constitutes a violation of a divine edict. The biblical prohibition against intercourse with gentiles applies equally to both sexes according to <i>Maharam Schick,</i> even though the punishment for a male is more severe than for a female. In demonstrating the cogency of this conclusion, <i>Maharam Schick</i> refers to the previously cited verse, Nehemiah 10:31. It is this verse which is adduced by Rambam in order to show that the prohibition encompasses all gentiles. Nehemiah refers explicitly to both "our daughters" and "our sons" thereby demonstrating that both Jewish males and Jewish females are forbidden to cohabit with non-Jews.
  Another authority, <i>Avnei Milu'im, Even ha-Ezer</i> 16:1, adduces yet another proof in establishing a biblical commandment prohibiting a Jewess from cohabiting with a non-Jew. According to <i>Avnei Milu'im,</i> the primary reference of the verse "For he will turn away thy son from following Me" (Deuteronomy 7:3) is to a Jewess who consorts with a non-Jew and applies only secondarily to a Jew who cohabits with a gentile woman. In the latter case, argues this authority, a child born of the liaison is a gentile and cannot properly be spoken of as "<i>thy</i> son," since Jewish law recognizes no relationship between a Jewish father and his non-Jewish progeny. However, since the child of a Jewish mother is a Jew even if the father is a non-Jew, a filial relationship does exist in Jewish law between the child and the mother. Accordingly, concludes <i>Avnei Milu'im,</i> in speaking of intermarriage as being forbidden "For he will turn away <i>thy</i> son from following Me" the verse must be addressed primarily to Jewish women. Hence, this verse serves to establish the existence of a biblical prohibition against cohabitation between a Jewess and a gentile.
  III. Lo Yiheyeh Kadesh
  It may cogently be argued that yet another prohibition is associated with the act of cohabitation with a gentile. This prohibition is based upon Deuteronomy 23:18: "<i>Lo tiheyeh kedeshah mi-benot Yisra'el ve-lo yiheyeh kadesh mi-benei Yisra'el</i>." This passage is rendered in standard English translation as "There shall be no harlot of the daughters of Israel, neither shall there be a sodomite of the sons of Israel." Rashi, following one opinion presented in <i>Sanhedrin</i> 54b, does indeed understand the term "<i>kadesh</i>" as referring to a male prostitute who makes himself available for homosexual activity. Rambam, <i>Sefer ha-Mizvot, lo ta'aseh,</i> no. 350, records the latter part of this verse as an injunction against homosexual relations. However, this passage was not universally understood in this manner by Jewish exegetes. Rambam, <i>Hilkhot Ishut</i> 1:4, understands the first section of this verse as establishing a prohibition against fornication. Sexual intercourse between unmarried persons constitutes a violation of this commandment according to Rambam. <i>Targum Onkelos</i> translates this verse as follows: "No Jewish woman of the daughters of Israel shall marry a slave and no male of the children of Israel shall marry a female slave." <i>Maharam Schick</i> and others point to the fact that the verse in the original Hebrew does not specify cohabitation with a slave.5<i class="footnote">See commentary of Ramban, <i>ad locum.</i></i> They observe that <i>Targum Onkelos</i> speaks of a slave simply as an example of the type of sexual liaison to which reference is made. Instead of rendering a literal translation the <i>Targum</i> offers an example of a sexual relationship between individuals who cannot be united in matrimony with the implication that all comparable relationships are likewise included in the prohibition. Fornication between an unmarried male and an unmarried female does not fall within the scope of this prohibition according to the <i>Targum</i> because such persons are eligible to contract a valid marriage. The prohibition, for the <i>Targum,</i> is limited to a situation in which matrimony is halakhically precluded but includes cohabitation between any male and female who are halakhically incapable of contracting a valid marriage. A liaison between a Jewish male and a non-Jewish female slave or between a Jewish woman and a male slave is merely an instance of such a relationship. According to this analysis, <i>Targum Onkelos</i>' example of a slave serves as a general paradigm applying to all situations in which marriage between the two individuals is a halakhic impossibility. It follows, therefore, that since Jewish law does not under any circumstances recognize the existence of a matrimonial relationship between a Jew and a non-Jew, the prohibition "<i>lo yiheyeh kadesh</i>" is applicable in all cases of intermarriage.
  IV. Rabbinic Edicts
  In addition to the biblical prohibitions which have been discussed, cohabitation with non-Jews is proscribed by virtue of two rabbinic edicts. The first of these, recorded in <i>Avodah Zarah</i> 36b, is the previously mentioned decree of the <i>Bet Din</i> of Shem forbidding a Jewish woman to consort with a non-Jew. The Gemara, <i>Sanhedrin</i> 82a, reports that subsequently, during the Maccabean period, the <i>Bet Din</i> of the Hasmoneans similarly promulgated a decree forbidding sexual intercourse between a Jewish male and a non-Jewess. The latter decree forbids all acts of fornication and, moreover, prescribes corporal punishment for violation of this edict. There can, then, be no question that not only is intermarriage between a Jew and a non-Jew forbidden, but that all forms of sexual intercourse between a Jew and a non-Jew constitute a violation of Jewish law.
  V. A Concluding Observation
  To be sure, an analysis of halakhic prohibitions and their ramifications does nothing for the resolution of a problem which currently has reached epidemic proportions. The solution lies in an undertaking of an entirely different nature.
  We would do well to focus our attention upon the last chapter of the Book of Nehemiah in which Nehemiah inveighs against intermarriage. Upon careful examination of the text, one notes that, before addressing himself to the problem of intermarriage, Nehemiah first expresses his concern regarding Sabbath observance. He addresses the populace telling them that he has seen people publicly carrying their wares in the streets of Jerusalem for sale on the Sabbath. Before he speaks of intermarriage and before he admonishes his listeners to put away their non-Jewish wives, he tells them that he had personally locked the gates of the walls surrounding Jerusalem so that no one would be able to bring merchandise into the city on the Sabbath. Only then does he address himself to the problem of intermarriage. Nehemiah was very well aware of the fact that, before one attacks the problem of intermarriage, it is first necessary to do something about the problem of commitment. Only after the problem of commitment has been addressed in a resolute manner can one address oneself to the problem of intermarriage.
  There is a well-known story which bears repetition.6<i class="footnote">See R. Immanuel Jakobovits, “The Problem of Intermarriage,” transcript of the Annual Lecture of the Jewish Marriage Education Council, London, 1967, p. 14.</i> The anecdote involves a young man who arrives at a train station and, spying an elderly gentleman, walks over to the gentleman and asks him what time it is. The elderly man just stares at him and does not answer. The young man asks a second time, "What time is it, please?" and, again, no reply. The young man asks a third time. Finally, he says, "I asked you nicely and politely to tell me the time. Why don't you answer?" Thereupon, the elderly gentleman turns to the young man and says: "My friend, if I tell you the time, then, when the train arrives, you will board the train with me and you will sit down next to me. You will begin talking to me and then you will ask me where I live. When we reach our destination, you will find some excuse to come to my house. When you come to my house, you will see that I have an attractive daughter. You will begin dating her and eventually you will marry her. But I don't want a son-in-law who doesn't even own a wristwatch!" These things can be prevented only at a very, very early stage. The time to prevent them is in early childhood; and the way to prevent them is by providing an intensive Jewish education, an education which is geared to promoting observance of <i>mizvot.</i>
  Where one finds intensive education, deep commitment and maximum observance, instances of intermarriage are much, much lower than elsewhere. We live in an open society and, of course, there may well be individuals who will be lost to our community no matter what we do. Those are the exceptions which prove the rule. The chances of a Bridget marrying a Bernie are statistically very high, but the chances of a Bridget marrying a Baruch or a Berel are remote, to say the least.
  Quite apart from the gravity of the formal prohibition, Jews have always seen intermarriage as the greatest threat and danger to their very survival. In his commentary to the Song of Songs, Rashi eloquently gives voice both to our perception of the extent of this peril and to our conviction that, as a community, we will never succumb.
  Song of Songs 8:9 declares "If she be a wall we shall build upon her a turret of silver; but if she be a door we shall enclose her with panels of cedar." According to Rashi, God addresses Israel and describes two alternative modes of conduct open to Israel in the Diaspora. The community of Israel may resolve to "be a wall," and to comport itself as if fortified with "walls of brass" (Jeremiah 1:18) which cannot be penetrated, i.e., Israel may gird herself as a defensive wall, withstand incursions and refuse to allow the nations to infiltrate through intermarriage. If Israel acts in this manner "a turret of silver" will be erected, i.e., Israel will survive to witness the rebuilding of the Holy City and the Temple. However, if the community of Israel "be a door which revolves on its hinges," the result will be far different. If Israel wavers and succumbs to every alien knock, opening her door to foreign nations through intermarriage, rather than being fortified with noncorroding silver, her doors will be lined with wooden panels which are exposed to rot and decay. The corrosive effect of intermarriage is such that the community decays and withers away.
  In the immediately following verse the Jewish people reply with the resounding words: "<i>Ani ḥomah</i>—I am a wall!" In effect, Israel addresses the Almighty, proudly assuring Him that all fears for her future are unjustified. The Jewish people vows to comport itself, not as a door, granting entry to all who knock, but as a fortified wall, jealously guarding the security and integrity of the nation.
  In an open society, the losses sustained as a result of intermarriage are staggering and painful. There is no greater or more pressing problem which besets the contemporary Jewish community. Nevertheless, the words "<i>Ani ḥomah</i>" resound over the centuries as a vow and as an assurance that the integrity of <i>Klal Yisra'el</i> as a people will be preserved through the fortitude of those who stand firm in their commitment to uphold the covenant between the Jewish people and the God of Israel.
  
  Chapter XIV Mental Incompetence and Its Implications in Jewish Law
  
  <i>The Lord preserves the simple; I was brought low and He saved me</i>.
  PSALMS 116:6
  One of the most basic issues of concern to persons involved in the mental health care professions is formulation of the criteria which mark the distinction between mental competence and mental incompetence for purposes of Halakhah. The problem is hardly a novel one. In times gone by the issue was primarily the question of legal capacity for purposes of executing a religious divorce in situations in which a wife sought a divorce from a husband who was mentally disturbed. At present, when so much more can be done on behalf of the mentally ill, the question arises most frequently in the context of the therapist's obligation to encourage performance of <i>mizvot</i> and his concommitant obligation to caution against infraction of Jewish law. These obligations may, at times, be of paramount significance in determining the mode of therapy which may be undertaken in consonance with halakhic norms. In virtually all cases the possibility of undertaking to provide a truly value-free therapy can be contemplated only when, by virtue of his mental condition, the patient may be deemed to be absolved from the obligations and constraints imposed by Jewish law.
  I
  Any analysis of this question must begin with an elucidation of the term <i>shoteh</i>. The term is a general one and is employed in rabbinic sources to denote a person who is mentally incompetent either by reason of insanity or mental retardation. Diagnosis of this mental state is by means of overt behavior patterns. The criteria of a <i>shoteh</i> are formulated in the <i>Tosefta</i>, <i>Terumot</i> 1:3, and cited by the Gemara, <i>Hagigah</i> 3b, in a somewhat different form:
  Our Rabbis taught: Who is a <i>shoteh?</i> One who goes out alone at night; one who spends the night in a cemetery; and one who tears his garments.
  The Gemara continues its discussion by adducing a dispute between two Amoraim with regard to the meaning of this dictum. Rav Huna considers the list of symptoms presented as indicative of mental incompetence to be conjunctive in nature. According to Rav Huna, a person is not considered to be a <i>shoteh</i> unless he manifests each of the three forms of bizarre conduct described by the <i>Tosefta</i>. Rav Yoḥanan disagrees and asserts that the criteria are listed disjunctively. According to Rav Yoḥanan a person is deemed a <i>shoteh</i> if he manifests any one of the three forms of erratic conduct depicted in the <i>Tosefta</i>.
  The Gemara, however, is fully cognizant that virtually any mode of conduct may, at times, be entirely rational. Hence, the Gemara is not prepared to accept bizarre conduct in and of itself as arbitrarily establishing mental incompetence. On the other hand, if a person's actions are manifestly irrational it is difficult to perceive why Rav Huna insists that lack of mental competence be evidenced in three diverse types of activity. Accordingly, the Gemara queries:
  What is the case? If he does them in an irrational manner, even one is [sufficient to establish mental incompetence]; If he does not do them in an irrational manner, even all of them [establish] nothing. Indeed [the <i>Tosefta</i> refers to a case in which] he does them in an irrational manner. But if he [only] spent the night in a cemetery, I might say: He did [it] in order that the spirit of impurity might rest upon him. If he [only] went out alone at night, I might say: He was seized by <i>ganderipos</i> (melancholy or heat: Rashi). If he [only] tore his garments I might say: He was lost in thought. But since he did all of them he becomes like [an ox] which gores an ox, an ass and a camel, and becomes [thereby] a forewarned gorer [<i>mu'ad</i>] with regard to all animals.
  Several principles emerge from this discussion: 1) Erratic conduct, no matter how bizarre it may appear, is not indicative of mental incompetence if there exists a rational basis for such conduct. 2) Irrational behavior, even if limited and manifest in only one type of activity is a sufficient criterion of <i>shetut</i> or mental incompetence provided that no rational explanation for such conduct may be advanced. 3) The controversy between Rav Huna and Rav Yoḥanan is limited to situations in which no obvious explanation for aberrant behavior presents itself but in which such an explanation, albeit one which is farfetched, is conceivable. According to Rav Huna, manifestation of what is <i>prima facie</i> an irrational pattern of behavior in one or two areas of conduct may be dismissed by ascribing unlikely but rational explanations; but aberrant behavior in three areas of conduct cannot be rationalized in this manner. According to Rav Yoḥanan even a single form of behavior which is <i>prima facie</i> irrational in nature is sufficient to establish mental incompetence.
  This dispute between Rav Huna and Rav Yoḥanan is considerably modified by the Gemara, <i>Hagigah</i> 4a. The Gemara cites a further tannaitic dictum: "Who is [deemed to be] a <i>shoteh?</i> One who destroys all that is given to him." This form of behavior in and of itself is deemed by the Gemara to constitute absolute evidence of mental incompetence even according to Rav Huna and, accordingly, the Gemara concludes that, "tearing one's garments," since it is but a form of "destroying all that is given to him," is in itself sufficient evidence for establishing mental incompetence. The Gemara remains in doubt with regard to whether Rav Huna would have completely retracted his earlier stated opinion and would agree that a pattern of going out alone at night or of spending the night in a cemetery is alone sufficient evidence of <i>shetut</i> or whether he would continue to disagree with Rav Yoḥanan in maintaining that the latter criteria cannot individually establish mental incompetence.
  The Gemara, then, presents a total of four different criteria of mental incompetence but is silent with regard to other forms of aberrant activity. Quite obviously, some persons may suffer from various forms of mental illness manifesting themselves in various forms of bizarre behavior which are quite different from those enumerated by the Gemara. Is a person who manifests such behavior to be categorized as a <i>shoteh?</i> Rambam, <i>Hilkhot Edut</i> 9:9, declares:
  The <i>shoteh</i> is disqualified by biblical law from serving as a witness because he is not subject to the commandments. Not only a <i>shoteh</i> who walks around naked, who breaks utensils and throws stones [is disqualified], but anyone who is mentally deranged with the result that his mind is constantly confused with regard to some matter, even though he converses and asks questions to the point with respect to other matters, is disqualified [from serving as a witness] and is considered to be among the <i>shotim</i>.
  The commentaries on Rambam's <i>Mishneh Torah</i> raise the obvious question. Rambam, in formulating the disqualification of witnesses on the basis of mental incompetence, ignores the criteria enumerated by the Gemara and presents his own, viz., walking naked, breaking utensils, throwing stones and mental confusion. R. Joseph Karo, <i>Bet Yosef, Even ha-Ezer</i> 121, asserts that Rambam seeks to emphasize that the criteria presented by the Gemara are not intended to be exhaustive in nature; those criteria are illustrative and designed to indicate that any form of irrational behavior serves to establish that the individual behaving in such a manner is mentally incompetent. For this reason, explains <i>Bet Yosef</i>, Rambam chose to list a number of examples of aberrant behavior not specifically mentioned by the Gemara.
  <i>Bet Yosef</i> argues that the cogency of Rambam's position is readily apparent upon an examination of the earlier cited talmudic discussion. The first definition adduced by the Gemara, <i>Hagigah</i> 3b, lists three criteria of a <i>shoteh;</i> a second dictum, which is cited subsequently, presents a fourth criterion but fails to mention the three criteria enumerated in the first dictum. From the context of the talmudic discussion it is readily apparent that the Gemara does not perceive these two definitions to be in conflict with one another. Accordingly, argues <i>Bet Yosef</i>, it may be deduced that neither definition is exhaustive in nature since, in actuality, <i>any</i> form of irrational behavior is evidence of mental incompetence. The behavior patterns are mentioned in each of the tannaitic statements by way of example only and neither separately nor collectively do they constitute exhaustive criteria of <i>shetut</i>. Accordingly, Rambam rules that any form of conduct which is manifestly irrational, even if limited to one aspect of human behavior, is sufficient to establish that the individual is a <i>shoteh</i>.
  A similar explanation of Rambam's position is offered by R. Aryeh Leib of Metz (<i>Sha'agat Aryeh</i>) in his classic responsum concerning the <i>get</i> of Cleves, a halakhic cause célèbre of the eighteenth century. This responsum originally appeared in <i>Or ha-Yashar</i>, a collection of responsa dealing with the controversy edited by R. Aaron Simon of Copenhagen, and was republished in <i>Sha'agat Aryeh</i>, addenda, no. 2. The case involved a young man who exhibited signs of paranoia and erratic behavior shortly after his marriage. During this period he executed a bill of divorce on behalf of his wife under the supervision of the chief rabbi of Cleves. A controversy with regard to the validity of the <i>get</i> arose among many of the most prominent rabbinic authorities of the day. The issue in dispute was whether or not the husband's erratic behavior was of a nature which rendered him a <i>shoteh</i> lacking legal capacity to execute a <i>get. Sha'agat Aryeh</i>, together with most of the authorities consulted, upheld the validity of the <i>get</i>. In the course of his lengthy and erudite responsum, <i>Sha'agat Aryeh</i> explains Rambam's comments in <i>Hilkhot Edut</i> and, in particular, addresses himself to the question of why it is that the Gemara presents four particular examples of aberrant behavior if, in Rambam's opinion, any form of irrational behavior constitutes sufficient evidence of <i>shetut. Sha'agat Aryeh</i> points out that the Gemara recognized that the examples enumerated in <i>Hagigah</i> 3b are indeed usually indicative of mental incompetence but that, nevertheless, the conduct described could, under certain conditions, be explained in a perfectly rational manner. A person who spends the night in a cemetery may seek to have "the spirit of impurity rest upon him"; a person who goes out alone at night may suffer from <i>ganderipos</i>, etc. Nevertheless, since prima facie such conduct is irrational in nature, a person behaving in this manner is presumed to be a <i>shoteh</i>. However, declares <i>Sha'agat Aryeh</i>, if another form of erratic behavior is exhibited which is manifestly irrational and cannot be explained in any manner, there is, <i>a fortiori</i>, no question that such behavior is a sufficient indication of mental incompetence. Rav Huna, no less than Rav Yoḥanan, would agree that even a single form of aberrant behavior for which no rational explanation may be found is sufficient to establish that the person is a <i>shoteh</i>. The Gemara, in presenting specific examples, seeks to demonstrate only that even forms of behavior which allow for unlikely rational explanation must also be deemed to be manifestations of mental incompetence. Accordingly, Rambam rules that any form of bizarre behavior which does not readily admit of rational explanation is an indication of mental incompetence.
  Rambam's position is opposed by at least three early authorities. <i>Bet Yosef, Even ha-Ezer</i> 119 and <i>Even ha-Ezer</i> 121, cites the opinion of Rabbenu Simchah of Shapira, R. Shalom Shimshon ben Abraham and R. Joseph Kolon, <i>Teshuvot Maharik</i>, no. 19, who maintain that the criteria enumerated by the Gemara are exhaustive in nature. According to the position espoused by these authorities, a person may be deemed to be a <i>shoteh</i> only upon manifestation of the particular types of behavior described by the Gemara. Any other form of bizarre behavior, even though manifestly irrational, does not constitute a criterion of <i>shetut</i>. However, Shulḥan Arukh, Hoshen Mishpat 35:8, in describing a <i>shoteh</i> who is disqualified from serving as a witness, quotes the language of Rambam verbatim. Similarly, R. Moses Isserles, <i>Darkei Mosheh, Even ha-Ezer</i> 119:5, citing <i>Teshuvot Mahariv</i>, no. 42, apparently maintains that Rambam's opinion is normative.
  II
  However, acceptance of Rambam's position that any form of irrational behavior is sufficient evidence that the individual comporting himself in such a manner is a <i>shoteh</i> does not fully resolve the issue. The question which remains to be clarified is the delineation of the areas of Jewish law in which this operative definition of <i>shoteh</i> is applicable.
  In his commentary on <i>Hagigah</i> 3b, Rashi carefully spells out the ramifications of the definition presented. Rashi states that the definition of <i>shoteh</i> formulated in <i>Hagigah</i> is universal in nature. The <i>shoteh</i> thus defined, declares Rashi, is the <i>shoteh</i> "to whom reference is made in every place as being exempt from the commandments and from penalty, whose acquisition is not an acquisition and whose sale is not a sale." According to Rashi the criteria of mental incompetence presented in <i>Hagigah</i> serve to define every occurrence of the term in talmudic writings.
  It is remarkable that although the term <i>shoteh</i> occurs repeatedly throughout the <i>Mishneh Torah</i>, Rambam seeks to define this concept only in <i>Hilkhot Edut</i> in conjunction with the disqualification of the <i>shoteh</i> from serving as a witness. Rambam's definition of the term in this context is at once both puzzling and illuminating. Rambam makes it clear, albeit in an indirect manner, that the definition of <i>shoteh</i> formulated in <i>Hilkhot Edut</i> serves also to define the <i>shoteh</i> who is exempt from <i>mizvot</i>. A <i>shoteh</i> is incompetent to serve as a witness, Rambam stresses, not, as might have been anticipated, because his mental condition renders his testimony unreliable, but because "he is not subject to the commandments." Implicit in this statement is a ruling that a person defined as a <i>shoteh</i> in <i>Hilkhot Edut</i> is exempt from the obligation of fulfilling the <i>mizvot</i> of the Torah. Indeed, the latter exclusion, according to Rambam, is halakhically antecedent to the exclusion of the <i>shoteh</i> from the class of acceptable witnesses.
  The fact that Rambam makes the disqualification of a <i>shoteh</i> as a witness contingent upon his exemption from <i>mizvot</i> is conceptually problematic. Much more obvious grounds for excluding the testimony of a <i>shoteh</i> may be found in the fact that his testimony is simply not reliable. Indeed in the very next section, <i>Hilkhot Edut</i> 9:10, Rambam himself rules that mental impairment of a degree which falls short of categorization as <i>shetut</i> suffices to disqualify a person from serving as a witness simply because of the inherent unreliability of such testimony. Accordingly, Rambam rules:
  The inordinately foolish who are unable to discriminate between contradictory matters and who do not comprehend matters as other people do and similarly those who are mentally disoriented and impulsive and those who are excessively deranged [in conduct] are included in the category of <i>shotim</i>. This matter [is to be determined] in accordance with the perception of the judge for it is impossible to be precise in writing.
  The categories of the mentally impaired defined in <i>Hilkhot Edut</i> 9:10, in contradiction to those described in <i>Hilkhot Edut</i> 9:9, include individuals who are considered to be <i>shotim</i> solely for purposes of disqualification from serving as witnesses but are deemed to be "normal" for all other purposes. The feeble-minded are bound by the commandments although their testimony may not be accepted. Their testimony is excluded by reason of the fact that they "do not comprehend matters" and hence are not competent to testify to matters before the court. If so, the persons described in <i>Hilkhot Edut</i> 9:9, since their competence is diminished even beyond that of those described in <i>Hilkhot Edut</i> 9:10, should logically be disqualified from serving as witnesses for that reason alone. Hence the reason posited by Rambam, viz., that the <i>shoteh</i> "is not subject to commandments," seems to be superfluous.
  A number of suggestions have been offered for resolving this difficulty, some of which have important halakhic ramifications. One such explanation is offered by R. Moses Feinstein, <i>Iggerot Mosheh, Even ha-Ezer</i>, I, no. 120. Rabbi Feinstein describes the first divorce proceeding at which he presided while yet a young man serving as rabbi of Luban in Byelorussia. The husband insisted that he was the Messiah. In addition, he exhibited rather erratic forms of behavior which he explained by claiming that it was his mission to bring the universe to perfection. On occasion he was wont to parade in the nude. In all other matters the young man was entirely normal. The question, of course, was whether the husband possessed the legal capacity necessary in order to execute a valid <i>get</i>. Rabbi Feinstein ruled in the affirmative. The principal reason advanced by <i>Iggerot Mosheh</i> is that a person's conviction that he is the Messiah, although erroneous, is not necessarily irrational. The other forms of bizarre conduct manifested by the young man flowed from this belief and hence could readily be assumed to be rational. Even the man's nudist practices are explained by <i>Iggerot Mosheh</i> as being entirely rational. The same exaggerated notion of self-worth which causes an individual to believe that he is the Messiah may also lead him to believe that he enjoys the exalted moral status of Adam prior to the sin of the Tree of Knowledge and that he may therefore walk about unclothed.
  In the course of this responsum <i>Iggerot Mosheh</i> elucidates an interesting ramification of Rambam's ruling in <i>Hilkhot Edut</i> 9:9. Rambam declares that a person who is "constantly confused with regard to some matter" is a <i>shoteh</i> even though he is entirely rational with regard to all other matters. Rambam declares such that an individual is not only disqualified from serving as a witness but is also exempt from all commandments. Why, queries <i>Iggerot Mosheh</i>, should a person be exempt from all <i>mizvot</i> if absence of rationality is limited to one specific area of conduct? Absent Rambam's ruling, it would be assumed that a person is obligated to observe any and all <i>mizvot</i> with regard to which his mental state does not constitute an impediment. Mental aberration which is limited in nature need not cause general diminution of mental capacity. <i>Iggerot Mosheh</i> answers that, according to Rambam, the Torah does not establish partial obligations with regard to <i>mizvot</i>. A person is either "subject to commandments" or he is not subject to commandments; a person cannot be obligated with regard to some <i>mizvot</i> and exempt from others. A deranged person is clearly exempt from the <i>mizvot</i> for which he lacks mental competence; hence he must be exempt from all <i>mizvot</i>. Since such a person is exempt from <i>mizvot</i> he is disqualified from offering testimony even pertaining to matters with regard to which he is entirely lucid and fully competent. Accordingly, Rambam advances the reason "he is not subject to the commandments" in order to justify absolute exclusion of any testimony of such an individual even though his testimony may concern matters with regard to which he is entirely rational. However, concludes <i>Iggerot Mosheh</i>, for all other purposes of Jewish law, and specifically with regard to legal capacity to execute a <i>get</i>, Rambam would agree that a person who behaves irrationally in a limited area of conduct is not to be considered a <i>shoteh</i> with regard to other matters in relation to which he manifests no irrationality. It is only insofar as obligation regarding fulfillment of <i>mizvot</i> is concerned that, according to Rambam, a person who exhibits irrational conduct in one aspect of human behavior is exempt from fulfillment of all <i>mizvot</i>.
  However, this analysis of Rambam's position is not accepted by all authorities. Rambam, <i>Hilkhot Hamez u-Mazah</i> 6:3, rules that a person who suffers an epileptic attack and eats the required quantity of <i>mazah</i> on Passover eve while mentally incompetent as a result of that affliction must again partake of <i>mazah</i> after the attack has subsided and he has returned to a normal cognitive state. The reason advanced by Rambam is that the <i>mazah</i> consumed by the epileptic during the course of a seizure was eaten "at a time when he was exempt from all commandments" by virtue of mental incompetence. The exemption of a <i>shoteh</i> from <i>mizvot</i>, it should be noted, is categorically distinct from the exemption of an <i>anus</i>, i.e., a person prevented from fulfilling a <i>mizvah</i> by virtue of physical inability, force or the threat of force. Although <i>force majeure</i> and physical incapacity similarly relieve a person from the fulfillment of commandments they do not constitute an intrinsic exemption from <i>mizvot</i> but simply an exemption from responsibility or culpability. A person who is physically incapable of swallowing is exempt from eating <i>mazah</i> only in the sense that he cannot be held responsible for doing so. A <i>shoteh</i> is exempt for the more fundamental reason that he is not at all bound by the obligation (<i>lav bar ḥiyuva</i>). Hence consumption of <i>mazah</i> while in a state of mental incompetence cannot satisfy an obligation which devolves upon the individual only subsequently, i.e., upon his regaining mental competence. A person who eats <i>mazah</i> while suffering an epileptic attack has fulfilled no obligation. Upon recovering he becomes obligated to perform the <i>mizvah</i> which he has as yet not fulfilled.
  R. Ezekiel Landau, author of <i>Teshuvot Noda bi-Yehudah</i> employs this premise in explaining Rambam's position. <i>Noda bi-Yehudah</i>'s elucidation of Rambam's position is formulated in the course of a responsum dealing with the divorce of Cleves. This responsum is also published in <i>Or ha-Yashar</i>, no. 27. <i>Noda bi-Yehudah</i> maintains that, even according to Rambam, a <i>shoteh</i> is exempt from <i>mizvot</i> only to the extent that his mental impairment interferes with rational fulfillment of such obligations. A person who is irrational in even a limited sense is exempt from any <i>mizvah</i> requiring an act which he cannot perform in a rational manner. Moreover, as noted earlier, any <i>mizvah</i> performed in an irrational manner is not deemed to constitute the fulfillment of an obligation. Nevertheless, such a person remains bound by any commandment which he can perform in a rational manner. However, a person who is to any extent exempt from <i>mizvot</i> by virtue of mental incompetence is excluded entirely from the category of qualified witnesses. The Gemara, <i>Baba Kamma</i> 88a, in establishing categories of qualified witnesses cites the verse "and behold, if the witness be a false witness and has testified falsely against his brother" (Deuteronomy 19:18). The phrase "his brother," (which certainly cannot be understood in a literal manner since no person's testimony is accepted for or against his brother) is understood by the Gemara as denoting "a brother in <i>mizvot</i>," i.e., a person equally bound by the commandments. Accordingly, the principle is established that a person who is not subject to the commandments is disqualified from serving as a witness. <i>Noda bi-Yehudah</i> argues that even if he behaves irrationally with regard to only one specific type of conduct, a <i>shoteh</i> is disqualified from serving as a witness even though he is exempt only from <i>mizvot</i> with regard to which such behavior serves as an impediment. Since such a person is bound by only a limited obligation regarding commandments he is not "a brother (i.e., an equal) with regard to commandments." According to <i>Noda bi-Yehudah</i>'s analysis of Rambam's position, as distinct from that of <i>Iggerot Mosheh</i>, a person suffering from a limited form of mental incompetence is fully bound by those commandments whose rational fulfillment is not affected by his mental condition.
  A similar, yet somewhat different, explanation is advanced by <i>Teshuvot Hatam Sofer, Even ha-Ezer</i>, II, no. 4. <i>Hatam Sofer</i> agrees that a mentally ill person is obliged to fulfill <i>mizvot</i> to the extent that he is capable of doing so in a rational manner. <i>Hatam Sofer</i> asserts that, in describing a person who manifests only a limited form of irrational behavior as not bound by commandments, Rambam means that such a person cannot be held culpable should he commit perjury since he may plead that his false testimony was the product of his dementia. The general rule is that any testimony for which a witness cannot be held accountable should the testimony prove to be false (<i>edut she-i atah yakhol le-hazimah</i>) must be excluded.
  Thus, according to both <i>Noda bi-Yehudah</i> and <i>Hatam Sofer</i>, a person who manifests irrational conduct of a circumscribed nature is disqualified from serving as a witness and is exempt from <i>mizvot</i> which he cannot fulfill in a rational manner but is nevertheless obligated to perform any <i>mizvah</i> whose fulfillment is not compromised by diminished mental competence, while according to <i>Iggerot Mosheh</i> such a person is entirely exempt from all commandments. According to <i>Noda bi-Yehudah</i> and <i>Hatam Sofer</i>, Rambam concedes that the criteria of a <i>shoteh</i> which serve to establish total mental incompetence for all purposes of Halakhah are restricted to those enumerated in <i>Hagigah</i>. Rambam's broader definition is limited to disqualification from serving as a witness and to exemption from performance of specific commandments. <i>Iggerot Mosheh</i> reaches the same conclusion save that in his opinion such an individual is, according to Rambam, exempt from all <i>mizvot</i>.
  The comments of <i>Tosafot, Hagigah</i> 3b, are also of significance with regard to this question. The Gemara states that a person who acts in an aberrant manner, and whose actions cannot be explained rationally even in a far-fetched manner, is judged to be a <i>shoteh</i> on the basis of but a single form of irrational conduct; three forms of aberrant behavior are required according to Rav Huna, only when such conduct can be rationally explained in a plausible, but unlikely, manner. <i>Tosafot</i> challenges this assumption and offers a possible alternative interpretation of the tannaitic dictum cited by the Gemara. Perhaps, queries <i>Tosafot</i>, irrational behavior must be evidenced in three diverse areas of conduct in order to establish that a person is mentally incompetent with regard to all matters, just as an ox is declared to be a <i>mu'ad</i> with regard to all animal species only upon goring animals of three different species. Otherwise it may be assumed that the ox has a predilection for goring only one or two species. Similarly, it may well be the case, argues <i>Tosafot</i>, that a person is classified as a <i>shoteh</i> with regard to all matters only if he manifests irrational behavior in three aspects of human conduct; otherwise there may be grounds to assume that the individual's lack of mental competence is limited to the areas in which he has exhibited irrational behavior. To this query <i>Tosafot</i> responds that if a person is a <i>shoteh</i> with regard to one type of conduct "he must certainly be presumed to be a <i>shoteh</i> in all matters" (<i>vadai yesh le-haḥaziko be-ḥezkat shoteh le-kol davar</i>).
  The grounds for this presumption are not immediately clear since it is indeed certain that a person may suffer from a limited form of mental aberration. <i>Tevu'at Shor, Hilkhot Sheḥitah</i> 1:51, explains that <i>Tosafot</i> asserts that the human mind cannot function in an irrational manner with regard to one matter and remain entirely rational in all other areas. According to this analysis, <i>Tosafot</i> declares, in effect, that a person whose mental incompetence is manifest in any mode of conduct must be deemed to be mentally incompetent with regard to all matters. It would then follow that, according to <i>Tosafot</i>, a person who manifests irrationality in some form is exempt from all <i>mizvot</i> since all actions of such an individual are governed by an irrational mind. There is, however, no direct evidence which would serve to indicate <i>Tosafot</i>'s position with regard to the question of whether any form of patently irrational behavior constitutes a sufficient criterion of <i>shetut</i> or whether the criteria indicative of this state are limited to those specifically enumerated in <i>Hagigah</i>.
  <i>Iggerot Mosheh</i>, however, disagrees with the analysis of <i>Tosafot</i> advanced by <i>Tevu'at Shor</i> and argues that <i>Tosafot</i> employs the term <i>ḥazakah</i> in the sense of presumptive evidence. Thus, the fact that a person behaves irrationally with regard to one area of conduct serves to establish a presumption of irrationality with regard to other matters as well. However, since this is only a presumptive conclusion it is subject to defeat if it can be established that the individual is mentally competent with regard to other matters. <i>Iggerot Mosheh</i> adds that although, according to his understanding of Rambam, a person exempt from any <i>mizvah</i> by virtue of mental incompetence is exempt from all commandments, there is no reason to ascribe a similar view to <i>Tosafot</i>. Hence, according to <i>Tosafot</i>, a person of diminished rational capacity is nevertheless obligated to fulfill all <i>mizvot</i> which he can perform in a rational manner.
  III
  All authorities are, however, in agreement that a person who is entirely irrational in his conduct is not obligated to fulfill <i>mizvot</i>. If so, is it permissible to provide therapy for such patients which involves acts which constitute transgressions? May such persons be institutionalized for custodial purposes if such a procedure involves providing the patient with non-kosher food? Granted that the patient himself is under no restriction by virtue of mental incompetence, it is nevertheless not clear that others may cause him to engage in acts which are proscribed by Jewish law. A halakhic parallel exists with regard to minors. The Gemara, <i>Yevamot</i> 114a, states that although minors are exempt from <i>mizvot</i>, nevertheless, by virtue of biblical law, an adult is forbidden to feed children nonkosher food (<i>bal ta'akhilum</i>). By the same token an adult may not directly or overtly cause a minor to commit any forbidden act. Since, for purposes of Halakhah, a <i>shoteh</i> and a minor are regarded in a like manner the same restrictions are applicable with regard to a <i>shoteh</i> as well.1<i class="footnote">Cf., <i>Likutei He‘arot al Teshuvot Ḥatam Sofer</i>, I, no. 83, sec. 1, as well as sources cited by R. Eliezer Waldenberg. <i>Ẓiẓ Eli‘ezer</i>, XIV, no. 69, sec. 2.</i>
  The classic responsum commonly cited in discussions of this question is <i>Teshuvot Hatam Sofer, Oraḥ Hayyim</i>, no. 83. The inquiry directed to <i>Hatam Sofer</i> involved a child of approximately seven years of age. <i>Hatam Sofer</i> was asked whether it would be permissible to send the child to a school in Vienna specializing in the treatment of such youngsters with the anticipation that the boy's problems would be ameliorated. However, kosher food was not available in that institution. <i>Hatam Sofer</i> replied that, at least in terms of normative Halakhah, it would be permissible to enroll the child in such a school since the parents, in delivering the child into the custody of the school authorities, would merely be making it possible for others to serve him nonkosher food but would not do so themselves. He cautioned, however, that the child should be removed from the institution upon reaching the age of Bar Mitzvah.
  <i>Hatam Sofer</i> also presents a novel argument demonstrating that a Jew might even feed the child forbidden food directly if a cure would be effected thereby and, as a result, the child would become capable of fulfilling <i>mizvot</i> upon reaching religious maturity.
  The Mishnah, <i>Pesaḥim</i> 87a, describes an orphan who is the ward of a multiple number of guardians and rules that each of the guardians may acquire a paschal sacrifice on his own behalf and on behalf of his minor ward. The orphan may then, at his option, partake of whichever sacrifice he desires. The general rule is that a person may eat only of a paschal sacrifice "on which he has been counted," i.e., in which he has acquired a proprietary interest. An ancillary principle is that a person may not acquire such an interest in, and partake of, more than a single paschal offering. Nevertheless, the Mishnah rules that the child may partake of whichever paschal sacrifice he chooses.
  <i>Tosafot, Pesaḥim</i> 88a, raises an obvious question. Since the child may legitimately acquire an interest in only one such animal, how may the guardian serve the meat of the paschal offering to the child? In doing so, the guardian transgresses the commandment against causing a minor to eat a forbidden food. <i>Tosafot</i> answers that this prohibition does not apply to actions which are designed to train a child in the performance of <i>mizvot</i>. Accordingly, argues <i>Hatam Sofer</i>, it would be permissible to cause a child to eat forbidden food or to commit some other infraction of Jewish law if, by doing so, he would regain mental competence and thereby be enabled to fulfill <i>mizvot</i> at some future time.2<i class="footnote">In presenting this analysis of <i>Tosafot</i>’s position <i>Ḥatam Sofer</i> evidently follows the interpretation of <i>Tosafot</i> advanced by <i>Magen Avraham, Oraḥ Ḥayyim</i> 343:3. According to <i>Magen Avraham</i>’s understanding of <i>Tosafot</i>, a minor may be caused to commit even a biblical transgression when incidental to <i>ḥinnukh</i>. This interpretation of <i>Tosafot</i>’s position is however challenged by <i>Minḥat Ḥinnukh</i>, no. 7. <i>Minḥat Ḥinnukh</i> argues that since <i>ḥinnukh</i> is literally a matter of “training” it would be inconsistent to encourage a minor to perform an act—even when the act itself constitutes fulfillment of a <i>miẓvah</i>—if the selfsame act would be forbidden to an adult because of an attendant prohibition. <i>Ḥinnukh</i> or “training” of such a nature constitutes training and habituation in the performance of a forbidden act rather than of a meritorious one. Thus, argues <i>Minḥat Ḥinnukh</i>, it would be incongruous to present a child with flesh of the paschal sacrifice which has been cooked in liquid subsequent to roasting or with meat which has been defiled since, as an adult, such meat would be forbidden to him. On the contrary, proper training would require that the child be taught that such meat is forbidden.</i> Such an act would be no different from "training" (<i>ḥinnukh</i>) in the performance of <i>mizvot</i>.3<i class="footnote"><i>Ḥatam Sofer</i>’s position is apparently contradicted by R. Isaac Blaser (known as Reb Itzele Peterburger), <i>Pri Yiẓḥak</i>, I, no. 11. <i>Pri Yiẓḥak</i> asserts that <i>Tosafot</i>’s ruling is limited to situations in which a minor is caused to transgress in the course of the actual performance of a <i>miẓvah</i>, e.g., while engaged in eating the paschal sacrifice. However, <i>Tosafot</i> does not explicitly sanction an act causing a minor to transgress for the sake of fulfillment of a <i>miẓvah</i> at some future time even though the act may be preparatory to the fulfillment of a <i>miẓvah</i>.</i> <i>Hatam Sofer</i>'s reasoning would be equally applicable to similar conduct vis-à-vis an adult who might be cured of mental incompetence which renders him a <i>shoteh</i>.
  This argument notwithstanding, in practice, <i>Hatam Sofer</i> strongly advises against such a course of action even if, as a result, the child could become fully competent. <i>Hatam Sofer</i> advises that the child not be permitted to eat forbidden foods even if he would thereby ultimately be restored to normalcy and be enabled to fulfill <i>mizvot</i>. He reasons that as long as the child is mentally afflicted he is exempt from all commandments. A person who is exempt from <i>mizvot</i> is not obligated to seek ways and means of becoming obligated to fulfill <i>mizvot</i>.4<i class="footnote">Cf., however, <i>Magen Avraham, Oraḥ Ḥayyim</i> 340:29, to whom this is a matter of doubt. See also R. Iser Yehudah Unterman, <i>Shevet me-Yehudah</i>, I, 49 and 64.</i> Such a course of action is actually contraindicated, argues <i>Hatam Sofer</i>, if in order to accomplish this objective a person must partake of forbidden foods even though no actual transgression is involved thereby. The Gemara states that the eating of forbidden foods, quite apart from any transgression which may be incurred, causes <i>timtum ha-lev</i>, i.e., the food consumed has an adverse effect upon the person's moral character and spiritual well-being. Such an individual may later in life succumb to temptation and be led to all manner of transgression. Accordingly, advises <i>Hatam Sofer</i>, "Better that a person be a <i>shoteh</i> all his days rather than be wicked a single moment in the eyes of God."5<i class="footnote">See <i>Eduyot</i> 5:6.</i>
  <i>Iggerot Mosheh, Oraḥ Hayyim</i>, II, no. 88, offers diametrically opposed advice in the case of a mental patient who has been pronounced incurable. Such a person, declares <i>Iggerot Mosheh</i>, may without question be committed to a mental institution where he will be given nonkosher food. <i>Iggerot Mosheh</i> maintains that <i>Hatam Sofer</i> would have agreed with this advice. <i>Hatam Sofer</i> refused to counsel such a course of action, argues <i>Iggerot Mosheh</i>, only because a reasonable possibility existed that the child might be cured.6<i class="footnote">Cf., <i>Ẓiẓ Eli‘ezer</i>, XIV, no. 69, sec. 2.</i> The <i>timtum ha-lev</i> engendered in the course of effecting a cure might then lead him to transgression. However, in the case of an incurable patient, argues <i>Iggerot Mosheh</i>, there is nothing to fear. Since the patient will not be cured he will never be bound by the commandments and therefore will never be in a position to transgress. If, by chance, adds <i>Iggerot Mosheh</i>, the patient is indeed cured, such a cure can only be miraculous in nature. In such circumstances one need not fear that the patient will be adversely affected by the nonkosher food which he has eaten since God, it may be presumed, will not work an imperfect miracle.
  A grandson of <i>Hatam Sofer</i>, R. Simchah Bunim Sofer, <i>Tesḥuvot Shevet Sofer, Even ha-Ezer</i>, no. 21, indicates that <i>Hatam Sofer</i> was not addressing himself to a situation involving a mentally ill person but to a case involving a feebleminded child who would become subject to commandments upon reaching the age of thirteen. This appears evident from the fact that <i>Hatam Sofer</i> ruled that as a matter of normative Halakhah the child must be removed from the school upon reaching the age of Bar Mitzvah. However, rules <i>Shevet Sofer</i>, even according to the opinion of <i>Hatam Sofer</i>, a person who is totally incompetent may be committed to a mental institution in the hope of achieving a cure which will render the patient capable of performing <i>mizvot. Shevet Sofer</i> reasons that if no cure is achieved there is no reason to be concerned with regard to <i>timtum ha-lev</i>, while if a cure is achieved the gain to the patient in being able to perform <i>mizvot</i> far out-weighs any negative effect which may arise from <i>timtum ha-lev</i>.7<i class="footnote">See also <i>Teshuvot Bet Yiẓḥak, Even ha-Ezer</i>, I, no. 39, sec. 6.</i>
  Curiously, none of these authorities takes note of a positive obligation to cure the mentally ill. It would stand to reason that the obligations which mandate extension of therapeutic aid (including the commandment "And you shall return it to him," Deuteronomy 24:26, which is understood by Rambam as mandating restoration of health no less than of property) would apply to restoration of mental, no less than of physical, health. If so, it may well be argued that, in the absence of a prohibition against permitting a <i>shoteh</i> to partake of forbidden foods, the immediate obligation to provide health care is not set aside for reason of the uncertain future effects of <i>timtum ha-lev</i>.
  IV
  It is clear that insanity which poses a threat to the life of the patient or to the life of others is to be regarded no differently from any other threat to life. Accordingly, infractions designed to cure the illness and thereby remove the threat to life are warranted according to the general regulations governing <i>pikuaḥ nefesh. Issur ve-Hetter he-Arukh</i>, no. 59, sec. 35, records a query addressed to an earlier authority, Maharam, concerning an epileptic who sought advice regarding the permissibility of partaking of a forbidden food believed to possess medicinal properties capable of curing this disease. Maharam responded that, under the circumstances, such food would be permissible provided that the efficacy of the remedy has been established. This reply is predicated upon a determination that epilepsy constitutes a threat to life since the patient may endanger himself by "falling into fire or water." This decision is cited by many latter-day authorities in ruling that insanity constitutes a danger to life for the self-same reason.
  The sole authority who differs with regard to this ruling is R. Iser Yehudah Unterman, <i>Ha-Torah ve-ha-Medinah</i>, IV, 27, and <i>Shevet me-Yehudah</i>, I, 49 and 297. Rabbi Unterman distinguishes between epilepsy (which is a neurological illness) and psychiatric illnesses in presenting the rather strange—and indeed contrafactual—argument that the instinct for self-preservation is so deeply ingrained and suicidal tendencies are so rare that mental illness cannot be considered as falling within the category of diseases which imperil life. In support of his position Rabbi Unterman quotes the above cited responsum of <i>Hatam Sofer, Oraḥ Hayyim</i>, no. 83. Rabbi Unterman argues that <i>Hatam Sofer</i> could not have counseled against institutionalizing the child in question if mental illness were deemed a threat to life. However, as shown earlier, in point of fact, <i>Hatam Sofer</i>'s responsum deals with a case of feeble-mindedness rather than with a form of mental illness. In any event, Rabbi Unterman's position is contradicted by numerous rabbinic scholars who deem insanity a threat to life. These authorities include R. Israel Meir Mizrachi, <i>Pri ha-Arez</i>, III, <i>Yoreh De'ah</i>, no. 21; R. Yehudah Leib Graubart, <i>Havalim ba-Ne'imim</i>, IV, no. 13; R. Mordecai Winkler, <i>Levushei Mordekhai</i>, I, <i>Hoshen Mishpat</i>, no. 39; R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, IX, no. 51, chap. 3, sec. 9; <i>Iggerot Mosheh, Even ha-Ezer</i>, I, no. 65; and R. Yitzchak Ya'akov Weisz, <i>Minḥat Yizḥak</i>, I, no. 115.
  <i>Minḥat Hinnukh</i> contends that <i>Tosafot</i>'s statement is limited in application. This scholar views the principle formulated by <i>Tosafot</i> as applicable only in a situation in which the act of the minor involved a transgression which, in a comparable set of circumstances, would not attend upon the selfsame act when performed by a person who has reached the age of hakakhic capacity. In the case described by <i>Tosafot</i> the minor is not among the <i>minuyim</i>, i.e., among those "counted" upon the paschal sacrifice because of the actions of his guardians. As an adult competent of acquiring a share in the animal on his own behalf, such a difficulty would not arise. In such a case—and in such a case alone—argues <i>Minḥat Hinnukh, Tosafot</i> permits the child to be given a portion of the <i>korban Pesaḥ</i> for reasons of <i>ḥinnukh</i> despite the attendant transgression. Such "training" is entirely valid since, were the child to repeat the same act as an adult, it would entail no prohibition. A similar explanation is presented by R. Naphtali Zevi Yehudah Berlin, <i>Meromei Sadeh, Haggigah</i> 2a.
  See also R. Akiva Eger, <i>Drush ve-Hiddush R. Akiva Eger, ma'arakhah</i> 8, who rules that for purposes of <i>ḥinnukh</i> a minor may be caused to commit a rabbinic infraction but not a biblical transgression, e.g., a minor may be given a <i>shofar</i> to blow on <i>Rosh Ha-Shanah</i> even when <i>Rosh Ha-Shanah</i> occurs on <i>Shabbat</i> since the prohibition against use of musical instruments on <i>Shabbat</i> is not biblical in nature.
  In support of this distinction <i>Pri Yizḥak</i> cites a statement found in <i>Eruvin</i> 82a to the effect that a child of less than six years of age does not require an independent <i>eruv</i> but may enjoy the benefits of an <i>eruv</i> prepared by his mother on her own behalf. The general principle is that an <i>eruv</i> may be utilized only for the sake of fulfilling a <i>mizvah</i>, e.g., visitation of a mourner or participation in postnuptial festivities (cf., <i>Tosafot</i>, loc. cit., s.v. <i>katan</i>). Since an <i>eruv</i> may be prepared only when required for the purpose of fulfilling a <i>mizvah</i> it should then follow that a minor has no need whatsoever of an <i>eruv</i>. A minor may be caused to transgress for the sake of <i>ḥinnukh</i> in performance of a <i>mizvah</i>. It then follows that a minor may journey to the home of a mourner or to a wedding feast without benefit of an <i>eruv</i> while for a purely discretionary journey the <i>eruv</i> is of no avail. Thus, the Gemara's statement indicating that a minor may utilize his mother's <i>eruv</i> appears to be problematic since for purposes of fulfilling a <i>mizvah</i> a minor, according to these premises, should not require an <i>eruv</i>.
  <i>Pri Yizḥak</i> contends that a distinction must be made between causing a minor to transgress in the actual fulfillment of a <i>mizvah</i> and causing him to transgress in performing an act which is merely preparatory to the fulfillment of a <i>mizvah</i>. The former, as is evident from the comments of <i>Tosafot</i>, is permissible; the later is not. According to <i>Pri Yizḥak</i>, it would then follow that a minor (or a mentally incompetent adult) may not be fed forbidden foods in the course of therapy in order that he may become competent to fulfill <i>mizvot</i> since consumption of forbidden foods under such circumstances is not intrinsic to the actual fulfillment of a <i>mizvah</i> but is merely preparatory in nature. It should be noted that <i>Teshuvot R. Akiva Eger</i>, no. 15, permits an adult to give a prayer book to a child on the Sabbath for the purpose of carrying the prayer book to the synagogue in order that the child may be able to participate in communal prayer. This is permitted by R. Akiva Eger even though carrying the prayer book is merely preparatory to prayer but does not, in itself, constitute the fulfillment of a <i>mizvah</i>. This ruling, although contradicted by <i>Pri Yizḥak</i>, is entirely compatible with the position espoused by <i>Hatam Sofer</i>.
  
  Chapter XV Torah Education of the Mentally Retarded
  
  <i>And all your children shall be taught of God; and great shall be the peace of your children</i>.
  ISAIAH 54:13
  One of the happier developments in contemporary society is an enhanced awareness of, and concern for, the needs of the disabled and disadvantaged. Of late, this phenomenon has been paralleled in the Jewish community by intensive efforts to provide for the religious and educational needs of the handicapped, particularly of children suffering from serious learning disabilities and mental retardation. Such endeavors are certainly to be applauded. Quite apart from religious imperatives which may be involved, maximalization of educational opportunities within a Torah-oriented framework serves to promote the social integration of such children with their peers within the observant Jewish community. This, in turn, can only lead to greater happiness and emotional stability. Apart from these significant considerations, which in themselves generate halakhic imperatives, the nature and extent of the formal obligation vis-à-vis the Torah education of such children merits examination.
  The Gemara, <i>Sukkah</i> 42a, declares: "A minor who knows how to shake [the <i>lulav</i>] is obligated with regard to the <i>lulav;</i> [a minor who knows] how to cloak himself is obligated with regard to <i>zizit;</i> [a minor who knows] how to watch over <i>tefillin</i>, his father must purchase <i>tefillin</i> for him; [a minor] who knows how to speak, his father must teach him Torah and the reading of the <i>shema</i>."
  The focal principle giving rise to these provisions, as Rashi carefully points out, is the rabbinic obligation of <i>ḥinnukh</i> or training. Although performance of <i>mizvot</i> becomes obligatory only upon achieving the age of halakhic majority, viz., thirteen years and one day, rabbinic edict requires that a child be trained in the performance of <i>mizvot</i> at an earlier age. The Gemara, in this statement, seeks to indicate the age at which the rabbinic obligation comes into effect. It is clearly established that there is no single, uniform age at which the father is required to introduce the child to the performance of all <i>mizvot;</i> nor is there a specified chronological age at which training in any particular <i>mizvah</i> becomes obligatory for all children. The age of obligation varies in accordance with the individual child's development and maturation and with regard to the nature of the <i>mizvah</i>. With regard to any specific <i>mizvah</i> the child must be initiated into its performance upon reaching the developmental stage at which he may perform the <i>mizvah</i> in the prescribed manner.
  As noted, Rashi and other commentators indicate that the obligation of <i>ḥinnukh</i> is rabbinic in character. It may therefore be assumed that with regard to each of the specific examples presented in <i>Sukkah</i> 42a the obligation is rabbinic rather than biblical. Accordingly, it may be inferred that a father is under rabbinic obligation to teach Torah to a child who "knows how to speak," but has no biblical obligation to do so. This conclusion is expressly affirmed by <i>Tosafot, Sukkah</i> 28b. Citing this statement of the Gemara, <i>Tosafot</i> remarks that the obligation of <i>ḥinnukh</i> with regard to Torah study commences when the child "knows how to talk."
  This inference, however, seems to be contradicted by a statement recorded in <i>Kiddushin</i> 29a. The Gemara posits a number of responsibilities which a father must fulfill on behalf of his son: "A father is obligated vis-à-vis his son: to circumcise him, to redeem him, to teach him Torah, to arrange for his marriage and to teach him a trade. Some say that he is also [obligated] to teach him to swim in water." The Gemara seeks a scriptural source for each of the enumerated obligations. In establishing an obligation to teach a son Torah, the Gemara adduces the verse "And you shall teach them to your sons …" (Deuteronomy 11:19).
  The obligation to teach a son Torah, as posited by the Gemara in <i>Kiddushin</i>, is clearly biblical in nature. Moreover, there are strong grounds for assuming that the father's obligation in this matter is not in the nature of <i>ḥinnukh</i> or training, i.e., the obligation is not instrumental in nature as a means of preparing the child for adulthood, but is intrinsic to the <i>mizvah</i> of Torah study itself.
  R. Baruch Ber Leibowitz, the <i>Rosh Yeshivah</i> of Kaminetz, in his <i>Birkat Shmu'el, Kiddushin</i>, no. 27, cites an analytic query posed by his renowned disciple and son-in-law, R. Reuven Grozowsky, concerning the nature of a father's obligation with regard to teaching his son Torah. Circumcision and redemption of the first-born are, in their essence, obligations incumbent upon the child. Nevertheless, the father is charged with performance of these commandments because the child cannot perform the requisite acts independently. Accordingly, the father is charged with an obligation to act on behalf of his son. R. Reuven Grozowsky queries; Is the father's obligation to instruct his son in Torah to be regarded in the same manner as his obligation regarding circumcision and redemption or in a different light? It might be argued that the obligation is similar to the father's obligation to circumcise and to redeem his son, i.e., the son is obligated to become proficient in Torah, but since it is impossible for a child to do so on his own initiative, the father is charged with providing instruction so that the son may fulfill this obligation. Alternatively, the obligation to teach one's son Torah may not be engendered by the son's obligation to acquire proficiency in Torah, but may constitute a personal obligation incumbent upon the father which is quite independent of the child's obligation to study Torah.
  <i>Birkat Shmu'el</i> demonstrates that the obligation is in the nature of the father's personal responsibility. In doing so, R. Baruch Ber bases himself upon a ruling recorded in Shulḥan Arukh, Yoreh De'ah 245:6 and the explanatory comment of R. Elijah of Vilna, Bi'ur haGra, Yoreh De'ah 245:15. <i>Shulḥan Arukh</i> rules that a father who is not competent personally to act as instructor for his son, or a father who does not have the leisure necessary to teach his son, is required to engage a tutor in his stead. <i>Bi'ur ha-Gra</i> remarks that the obligation to hire a tutor to teach one's son is identical with the obligation to hire a tutor for oneself if one is incapable of studying Torah without a teacher. The implication is that the two obligations are two sides of the same coin. The obligation to engage in Torah study and the obligation to teach Torah to one's son are two facets of a single <i>mizvah</i>, both of which constitute a personal obligation.
  To this writer, the identical concept appears to be reflected in a problem posed by the Gemara, <i>Kiddushin</i> 25b, and its accompanying resolution. Recognizing that education of a child may conflict with the father's own Torah study, the Gemara questions whether the father may give priority to his own study over that of his son, or whether he is obliged to give priority to his son's study over his own. Specifically, in the event that the father does not have sufficient funds to engage a tutor both for himself and for his son, should priority be given to the father or to the son? Despite a general obligation to teach Torah to "the son of one's fellow" as well as to one's own children, no such query is posed regarding a situation in which teaching another person's child would interfere with one's own study. The implication is that the question arises only with regard to one's own son because the commandment "And you shall teach them to your sons" is intrinsic to an individual's personal obligation with regard to Torah study. The notion that the obligation is incumbent upon the child himself but is discharged on his behalf by the father is dispelled by the Gemara's resolution of this question. The Gemara declares that the son's studies have priority over those of the father only if the son is a more proficient student.
  Were the father's personal obligation to study Torah and his responsibility to provide instruction for his son to be viewed as separate and distinct obligations, the question of priority between conflicting obligations would be germane; however, analyzed in this vein, the cogency of the Gemara's resolution is not at all clear. Every person, whether bright or dull, is obliged to study Torah. Similarly, a father must teach his son, regardless of the latter's intellectual capabilities. Consideration of varying acumen does not appear to be relevant to the ordering of priority between diverse obligations. If, however, it is understood that the obligation to teach one's son is intrinsic to fulfillment of one's personal obligation of <i>talmud Torah</i>, the Gemara's resolution of this problem is entirely cogent. A <i>mizvah</i> is always to be performed in the most enhanced manner possible. Torah is certainly to be studied in a manner which leads to the highest degree of proficiency. If it is assumed that, from the vantage point of the father's <i>mizvah</i>, the son's study and that of the father constitute fulfillment of one and the same obligation, it is readily understandable that priority is assigned to whichever of the two is the more proficient student. Should the son be the more proficient of the two, the father's <i>mizvah</i> is fulfilled in a more enhanced manner than through the latter's own study.1<i class="footnote">See <i>Shulḥan Arukh ha-Rav, Hilkhot Talmud Torah</i> 1:7, who explains this halakhah by stating, “<i>she-be-limud beno gam hu mekayem miẓvah shel Torah kemo be-limud aẓmo</i>—for in the study of his son he also fulfills the <i>miẓvah</i> of Torah [study] just as [he fulfills the <i>miẓvah</i>] in his own study.”</i>
  As earlier noted, if, as postulated by the Gemara, <i>Kiddushin</i> 29a, a father's obligation to teach Torah to his son is biblical in nature and encompassed in the biblical <i>mizvah</i> of <i>talmud Torah</i>, its inclusion by the Gemara, <i>Sukkah</i> 42a, in a catalogue of rabbinically imposed obligations of <i>ḥinnukh</i> is incongruous. In context, <i>Sukkah</i> 42a seems to imply that the obligation described is rabbinic in nature, rather than biblical.
  A related question is raised by Bi'ur haGra, Yoreh De'ah 245:19. Rema, <i>Yoreh De'ah</i> 245:8, rules that immediately upon attaining the age of three a child is to be taught the "letters of the Torah so that he accustom himself to read the Torah." <i>Bi'ur ha-Gra</i> comments, "I do not comprehend [Rema's] words since immediately when he begins to speak [the father] is obligated." <i>Bi'ur ha-Gra</i> is obviously referring to <i>Sukkah</i> 42a which posits an obligation to teach a child Torah as soon as he begins to speak. That level of maturity is generally reached sometime before the age of three. Hence, argues <i>Bi'ur ha-Gra</i>, it should logically follow that the father is obliged to begin to teach his son the alphabet and to read even prior to the age of three.
  In order to resolve the apparent contradiction between <i>Sukkah</i> 42a and <i>Kiddushin</i> 29a and in order to explain Rema's ruling it may be postulated that there exist two separate and distinct <i>mizvot</i> with regard to teaching Torah to one's children. "And you shall teach them to your children" quite obviously constitutes a biblical command. Rambam, Hilkhot Talmud Torah 1:7, and Shulḥan Arukh, Yoreh De'ah 245:6, declare that a father must teach his son the entire Written Law, including the Prophets and the Hagiographa; according to Rashi, <i>Kiddushin</i> 30a, the father's responsibility is limited to instruction in the Pentateuch. However, once the child has become proficient in the designated subject matter the father is relieved of all further obligation. The commandment "And you shall meditate thereon day and night" (Joshua 1:8) does indeed establish an ongoing obligation to study Torah even if the subject matter has been totally mastered, and, as recorded by Rambam, Hilkhot Talmud Torah 1:10, the verse "and lest they [the precepts] depart from your heart all the days of your life" (Deuteronomy 4:9) establishes an obligation to review the material one has already mastered since "whenever one ceases to engage in study, one forgets." Nevertheless, the subject matter in which a father must cause his son to become proficient is clearly circumscribed.
  In fulfilling the biblical obligation both to study Torah oneself and to teach Torah to one's son, a father might well choose to devote all available time to his own study for a period of time rather than to divide the available time between engaging in his own study and instructing his son. The father might do so on the plea that it is possible for him to impart the requisite knowledge to his son at a somewhat later time since the material he is obliged to teach is, relatively speaking, somewhat limited. Indeed, he might claim with some justification that such a procedure would reflect a more efficient allocation of time since the more mature the child, the less time need be expended in assisting him in mastering a given curriculum. There is little question that, for example, a child of six can learn to read in a fraction of the time it would require for a child of three to attain the same degree of proficiency. Since, in contradistinction to one's personal obligation of <i>talmud Torah</i>, a father's obligation vis-à-vis his son is to impart knowledge rather than to devote time to the teaching process, the father might devote himself exclusively to his own study for a significant period of time and delay his son's instruction anticipating that he would be capable of causing his son to become proficient in the Written Law in a relatively short period of time. Insofar as the father's biblical obligation is concerned there would be no barrier to fulfilling the <i>mizvah</i> of <i>talmud Torah</i> in this manner.
  However, the Sages were well aware that education must consist of more than mere book learning. In order to mold character and personality, values and attitudes must be imparted at a very early age. Even from a purely scholastic standpoint, the likelihood of attaining the desired proficiency is vastly enhanced if study habits are developed at an early age.
  It may be argued that the Sages accordingly established a second, more encompassing obligation. By virtue of rabbinic decree they obligated the father to begin the process of instruction at as early an age as conceivable, viz., immediately upon the child's acquiring the ability to speak. As defined by Rambam, Hilkhot Talmud Torah 1:6, this obligation is quite specific in terms of the extent of instruction which must be provided and the time-frame in which it must be provided. When the child begins to talk the father must teach him the verse, "<i>Torah zivah lanu</i> …" then, "<i>Shema Yisra'el</i>," and thereafter he is obligated to teach the child additional verses on a regular basis in accordance with the child's ability to absorb instruction. Finally, when the child reaches the age of six the father must provide the services of a full-time teacher who will provide an intensive regimen of study.
  The rabbinic obligation is rooted in the principle of <i>ḥinnukh</i>, i.e., training and habituation, in a quite literal sense. To be sure, in actually teaching a biblical verse to his son, the father fulfills the biblical commandment, yet the mandatory nature of the duty to seek the fulfillment of the biblical <i>mizvah</i> at a particular stage of the child's development is rabbinic. The fact that a certain act, when performed, constitutes the "<i>kiyum</i>," or fulfillment, of a biblical commandment does not necessarily entail that there exist a mandatory obligation to seek an opportunity for such fulfillment. In this case, the rabbinic ordinance specifies that the biblical obligation may not be delayed and prescribes that a child be taught Torah in a regular and ongoing manner.
  Rema's statement with regard to the age at which a child must be taught to read can now be placed in proper perspective. Rema declares that a child must be taught the letters of the Hebrew alphabet at the age of three, implying that prior to the age of three there exists no such obligation. To be sure, as <i>Bi'ur ha-Gra</i> hastens to point out, a father must begin to teach his son Torah as soon as the child is able to speak. However, the obligation to provide instruction at so early an age is rabbinic, rather than biblical, in nature. The rabbinic obligation, as defined by Rambam, requires instruction in a limited but increasing number of biblical verses until the child reaches the age of six. Rema declares that even a child of three should be taught the letters of the alphabet "so that he accustom himself to read the Torah," i.e., as part of the rabbinic obligation of <i>ḥinnukh</i>. The age at which the child reaches a degree of development and maturity which renders study of the alphabet a meaningful springboard in his educational development is set by Rema as three. There is thus no contradiction between establishment of the age at which the alphabet must be taught as three and the requirement that biblical verses be taught orally at a much earlier age. The rabbinic obligation of <i>ḥinnukh</i> requires the Torah be taught in a manner commensurate with the child's ability to learn. A child is capable of rote repetition of biblical verses at an early age but cannot readily master the reading of the alphabet until the age of three. The essence of the rabbinic obligation is to teach the child Torah in progressively more demanding stages in accordance with his developing abilities.
  The distinction drawn between the biblical obligation to teach a son Torah as a goal in and of itself and the rabbinic obligation of <i>ḥinnukh</i> as it pertains to the teaching of Torah yields yet other possible disparities. <i>Hinnukh</i> is rooted in the need to train a child in the performance of <i>mizvot</i> so that he will continue to fulfill them upon reaching the age of halakhic maturity. Accordingly, there is cogent reason to question whether the rabbinic obligation of <i>ḥinnukh</i> extends to a child who is a "<i>treifah</i>." A <i>treifah</i>, roughly defined, is a person suffering from an abnormality or trauma such that his normal life expectancy is less than twelve months. Hence, for example, a ten-year old who has experienced an accident which has damaged a vital organ and who is not expected to survive for a full year may be considered to be a <i>treifah</i>. Since it is not anticipated that he will survive until the age of Bar Mitzvah, he will never be subject to a biblical obligation with regard to <i>mizvot</i>. Is the father of such a child under rabbinic obligation to train him in <i>mizvot</i> which he unfortunately will never be able to fulfill as an adult?
  An analogous but more limited question arises with regard to <i>aliyah le-regel</i>, the thrice-yearly pilgrimage to Jerusalem which was mandatory during the days of the Temple. A cripple is specifically exempted from this biblical commandment. Hence, the father of a crippled minor is exempt from the rabbinic obligation of <i>ḥinnukh</i> with regard to this <i>mizvah</i>. What is the father's obligation in the case of a minor child facing imminent amputation of a foot subsequent to the festival? Is the father obligated to "train" the child to make the pilgrimage to Jerusalem since he is not yet disabled, or is he exempt from doing so since "training" in the performance of this <i>mizvah</i> is, under the circumstances, bereft of meaning?
  A negative answer to these questions would be entirely logical. Although, to this writer's knowledge, neither question has been addressed directly in earlier sources, some support for the conclusion that no obligation of <i>ḥinnukh</i> exists in such circumstances can be found in the comments of Rashba, <i>Megillah</i> 19b. The Mishnah declares that a minor cannot read the <i>Megillah</i> on behalf of an adult. <i>Tosafot</i> and other early authorities point out that "a minor who has reached the age of <i>ḥinnukh"</i> is obligated to hear the reading of the <i>Megillah</i> by virtue of rabbinic decree. Noting that the <i>mizvah</i> of reading the <i>Megillah</i> on Purim is rabbinic, these commentators proceed to query why it is that a minor cannot read the <i>Megillah</i> on behalf of an adult since both adult and child share an identical rabbinic obligation. To this question Rashba responds by declaring that the <i>mizvah</i> of <i>ḥinnukh</i> is intrinsically different from other rabbinic obligations, viz., the <i>mizvah</i> of <i>ḥinnukh</i> is designed "<i>le-hargil kodem zemano kedei she-yehe ragil be-mizvot ke-she-yagi'a zemano</i>—to accustom him before the time [of obligation] so that he be habituated in [the performance of] <i>mizvot</i> when the time [of obligation] arrives." Since the intrinsic nature of their respective obligations is entirely dissimilar, a minor cannot act on behalf of an adult. In essence, Rashba declares that, unlike other rabbinic commandments, the <i>mizvah</i> of <i>ḥinnukh</i> is not an end in itself but is entirely instrumental in nature. According to Rashba's distinction between the qualitative nature of the <i>mizvah</i> of <i>ḥinnukh</i> and other rabbinic commandments it would be entirely logical to assume that, absent the possibility of eventual biblical obligation with regard to a specific <i>mizvah</i>, there exists no instrumental rabbinic obligation with regard to training and habituation.
  The question of a father's obligation with regard to the rabbinic obligation of <i>ḥinnukh</i> vis-à-vis a child who is mentally incompetent as defined by Jewish law, is discussed by two latter-day authorities. <i>Minḥat Hinnukh</i>, no. 5, sec. 2, albeit without quoting the previously cited comments of Rashba, nevertheless employs much the same line of reasoning in stating that no obligation of <i>ḥinnukh</i> devolves upon the father of a <i>shoteh</i>, i.e., a mentally incompetent person, or a deaf-mute "for they will not enter the category of <i>mizvot</i>." <i>Pri Megadim, Oraḥ Hayyim, petiḥah kollelet</i>, part II, sec. 9, rules in a like manner, but for a different reason, viz., "for [a <i>shoteh</i> or deaf-mute] will not obey him as [they are] not at all possessed of reason."2<i class="footnote">Elsewhere, in <i>Eshel Avraham</i> 343:2, <i>Pri Megadim</i> voices a tentative feeling that there may be an obligation of <i>ḥinnukh</i> with regard to a deaf-mute. Similarly, <i>Arukh la-Ner, Yevamot</i> 113a, opines that such an obligation does exist with regard to a deaf-mute. See <i>Encyclopedia Talmudit</i>, XVI, 169, note 104. If Rashba’s comment is accepted as a source for this determination it would follow that no distinction should be made between a <i>shoteh</i> and a deaf-mute. However, for a halakhic definition of <i>ḥeresh</i> or deaf-mute and an analysis of the status of a deaf-mute in Jewish law see below, chapter XVIII.</i>
  According to the definitive ruling of these authorities, a father has no obligation of <i>ḥinnukh</i> with regard to a <i>shoteh</i> and hence it follows that he need not "train" a <i>shoteh</i> in the study of Torah. Nevertheless, in light of the earlier presented analysis of paternal obligation with regard to Torah study, it appears to this writer that it cannot be concluded that a father of a mentally incompetent child is entirely exempt from teaching his son Torah.
  As has been shown, a father is obliged to teach his son Torah by virtue of a two-fold obligation: one rabbinic, the second, biblical. The rabbinic obligation encompassed within the general obligation of <i>ḥinnukh</i> does not include a <i>shoteh</i>. However, with regard to the biblical obligation to teach Torah there does not appear to be any ground for distinguishing between a <i>shoteh</i> and a child of normal mental capacity. The commandment "And you shall teach them to your sons," as demonstrated earlier, is not at all predicated upon the capacity of the child to perform the <i>mizvah</i> upon reaching the age of halakhic capacity. A father is obligated to instruct his son in the biblical passages concerning <i>Shabbat</i> and <i>tefillin</i>, not in order that he become a Sabbath observer and don <i>tefillin</i>, but by virtue of the intrinsic <i>mizvah</i> of <i>talmud Torah</i>. The father is biblically obligated to teach Torah to his son just as he is obligated to study Torah himself. The paternal duty of <i>talmud Torah</i> is not predicated upon the mental competence of the child and is limited in extent solely by the child's ability to absorb instruction.
  The halakhic definition of a <i>shoteh</i> is beyond the scope of this discussion.3<i class="footnote">For an analysis of the definition of <i>shoteh</i> in Jewish law see above, chapter XIV.</i> Suffice it to say that the halakhic definition of a <i>shoteh</i> is technical in nature and that many individuals who are encompassed within the category of <i>shoteh</i> are certainly capable of at least elementary Torah study. By the same token, many children classified as mentally retarded are not encompassed within the halakhic category of <i>shoteh</i>.4<i class="footnote">See R. Moses Feinstein, <i>Am ha-Torah</i>, vol. II, no. 2 (5742); R. Chaim Pinchas Scheinberg, <i>Moriah</i>, Elul 5742; and R. Shlomoh Zalman Auerbach, <i>Moriah</i>, Elul 5742.</i> Such children are fully obligated with regard to <i>ḥinnukh</i> as well as to fulfillment of <i>mizvot</i> upon reaching the age of halakhic maturity. Nevertheless, as pointed out by R. Moses Feinstein, <i>Am ha-Torah</i>, vol. II, no. 2 (5742), the parents of such children are not obligated to train them in the various <i>mizvot</i> at the same age as they would be obligated to train normal children since the age of <i>ḥinnukh</i> is predicated upon the development and maturity of the child.
  The obligation of teaching Torah to a child is primarily a personal obligation which devolves upon the father. However, as recorded in Shulḥan Arukh, Yoreh De'ah 245:4, in the event that the father is himself not capable of teaching his son, either due to his own ignorance or because of lack of leisure, he is obligated to engage the services of a tutor.
  Communal obligation with regard to the Torah education of the mentally retarded requires further elucidation. The <i>Gemara, Baba Batra</i> 21a, relates that in early days "One who had a father, [the father] taught him Torah; one who did not have a father did not study Torah." This situation was rectified by means of a series of ordinances establishing a network of schools culminating in the ordinance of R. Joshua ben Gamala who ordained that classes be established in every district and city and that children be enrolled in these schools at the age of six or seven. The Gemara praises R. Joshua ben Gamala in the most laudatory terms for promulgating this ordinance "for if not for him Torah would have been forgotten by Israel."
  An early authority, Ramah, in his commentary on <i>Baba Batra</i> 21a, observes that pursuant to promulgation of the edict of R. Joshua ben Gamala the financial burden of educating the youth became a communal rather than a personal responsibility. Ramah believes this conclusion to be self-evident. How, queries this authority, could R. Joshua ben Gamala have decreed that the community provide teachers unless as part of the selfsame ordinance the community was made responsible for paying their hire?
  The matter of communal responsibility for educational expenses is also discussed by Rema, <i>Hoshen Mishpat</i> 163:3. Quoting Rabbenu Yeruḥam, Rema rules that the community is obligated to defray educational expenses only when the parents are not able to afford the expenses themselves. Under such circumstances, the resultant deficit is to be financed by levying an assessment or tax upon each member of the community in accordance with his net worth.
  <i>Tosafot, Baba Batra</i> 21a, maintains that the community is required to implement the decree of R. Joshua ben Gamala and to engage a teacher only if there are a minimum of twenty-five students requiring instruction. Since the <i>mizvah</i> of teaching Torah to children extends to the mentally retarded as well, it would follow that where there are a minimum of twenty-five such children in a community the community is required to establish a class for their instruction. If the financial expenditure is too onerous for parents to assume themselves—as is likely to be the case in light of the special educational requirements of such children—the financial burden must be borne by the entire community.
  However, pedogogically, retarded children cannot be taught properly in classes of twenty-five students. R. Moses Feinstein, in the above cited responsum, opines that while there may be no halakhic grounds for establishing a compulsory tax in order to engage additional teachers to cater to the needs of such students, nevertheless, charity funds should be utilized for such purposes. The obligations of charity mandate support of Torah study and such children are indeed worthy beneficiaries of charitable support.
  It should be noted that the community has the right and the duty to compel its members to contribute funds for charitable purposes. Although, as Rabbi Feinstein points out, the expenses involved in the education of such children may be in excess of the obligation incumbent upon the community by virtue of the edict of R. Joshua ben Gamala, the community may nevertheless be duty-bound to provide such services by virtue of the general obligation of charity. As noted earlier, apart from purely educational considerations, such children require educational opportunities within a Torah-oriented environment in order to foster emotional stability and well-being. Satisfaction of those needs is a matter entirely separate from obligations with regard to education per se. The latter, as mandatory requirements, are predicated entirely upon the edict of R. Joshua ben Gamala; the former flow from the general obligation of charity. The community's power to compel its members to fulfill obligations of charity by providing funds to assure the well-being of members lacking sufficient independent financial resources is entirely distinct from any obligation incumbent solely by virtue of the edict of R. Joshua ben Gamala. Surely, a community blessed with uncommon affluence should not find its obligations of charity inordinately onerous.
  
  Chapter XVI Teaching Torah to Non Jews
  
  <i>Moses has commanded us the Torah, an inheritance for the community of Jacob</i>.
  DEUTERONOMY 33:4
  <i>And it shall come to pass in the end of days … And many nations shall come and say, 'Come ye, and let us go up to the mountain of the Lord, to the house of the God of Jacob and He will teach us His ways and we will walk in His paths</i>.
  ISAIAH 2:2-3
  The prohibition against teaching Torah to non-Jews is well known to students of Jewish law. Equally well known is the role of Abraham as the "father of the multitude of nations" entrusted with the sacred task of carrying the teaching of monotheism to idolatrous peoples. A person unfamiliar with the extensive rabbinical literature devoted to this topic may perceive a certain tension, and perhaps even contradiction, between a recognized need to disseminate religious truths and an almost xenophobic reluctance to share the greatest repository of such truth—the Torah. Yet even a cursory examination of the relevant sources dispels the notion that while the community of Israel jealously guards its spiritual wealth, it refuses to share these riches with others. On the contrary, it is unique among western religions in its willingness to share its teachings without seeking to impose its observances. This necessarily involves a vocation of teaching despite the stricture against teaching Torah to non-Jews. The latter, while based upon substantive philosophical considerations and of definite halakhic import, admits of sufficiently broad exclusions to assure that Israel remains true to its role as a lamp unto the nations.
  In every legal system there are laws which at first glance appear to be severely restrictive but which upon closer scrutiny yield so many exceptions as to render such laws virtually nugatory. It would certainly be an overstatement to describe the prohibition against the study of Torah by non-Jews as an example of such a law. Nevertheless, in some contexts it is permissible to teach Torah to non-Jews, in others it is even praiseworthy to do so. The matter is greatly complicated by numerous disagreements between halakhic authorities with regard to the precise parameters of this prohibition. Thus numerous scholars permit the study or teaching of the Written Law, others permit forthright responses to inquiries with regard to any facet of Torah study and/or instruction to correct erroneous views, while still others permit the teaching of Torah but not of its "secrets or reasons." In the medieval period no less a personage than Rambam entirely excluded Christians from this prohibition, while in the last century R. Israel Salanter, the acclaimed founder of the Mussar movement, actually mounted a campaign for the incorporation of talmudic studies in the curricula of European schools and universities. With regard to some points there emerges a consensus; with regard to others, controversy remains. In order to understand properly how it may be that for some authorities and under some conditions an act may constitute a violation of a divine command, while for other authorities or under other circumstances the deed may be meritorious, it is necessary to undertake a careful examination of the halakhic sources.
  I. Rabbinic Sources and Responsa Literature
  Judaism teaches that the study of Torah, whose essence is a covenant between God and the community of Israel, is a privilege reserved for adherents of Judaism. Non-Jews, who are not bound by the commandments of the Torah, are neither required nor permitted to study Torah. The Gemara, <i>Sanhedrin</i> 59a, declares that a non-Jew who engages in the study of Torah has committed an offense deserving of the penalty of death. Rambam, <i>Teshuvot Pe'er ha-Dor</i>, no. 50,1<i class="footnote">This statement also appears in a somewhat different version of the same responsum published in <i>Teshuvot ha-Rambam</i>, ed. Abraham Chaim Freimann (Jerusalem, 5694), no. 364 and in <i>Teshuvot ha-Rambam</i>, ed. Joshua Blau (Jerusalem, 5718), I, no. 149.</i> followed by <i>Kesef Mishneh, Hilkhot Melakhim</i> 10:9, explains that this punishment is to be meted out by Heaven but not by a mortal court.2<i class="footnote">Cf., <i>Leḥem Mishneh</i> and <i>Be’er Sheva, Be’er Mayim Ḥayyim</i>, no. 14, who infer that the prohibition is rabbinic in nature from Rambam’s categorization of the death penalty as connoting “death at the hands of Heaven.”</i>
  The biblical text cited in establishing this prohibition is the verse, "Moses has commanded us the Torah, an inheritance for the community of Jacob" (Deut. 33:4). In explaining the nature of the prohibition against teaching Torah to non-Jews, the Gemara, <i>Sanhedrin</i> 59a, offers two distinct exegetic interpretations of this verse. Scripture speaks of the Torah as an inheritance bequeathed to the community of Jacob. According to one explanation, this phraseology serves to exclude non-Jews from participation in that legacy. Since the Torah was given only to the Jewish people, a non-Jew who studies Torah is, in a sense, appropriating to himself something which was not intended for him. Study of the Torah by a non-Jew is, according to this explanation, described as an offense akin to theft. Alternatively, the Gemara suggests that the biblical term <i>"morashah,"</i> meaning "inheritance," should be vocalized as <i>"me-'orasah,"</i> meaning "betrothed." The Torah is the "betrothed" of the community of Jacob. The bond which exists between Jews and the Torah is depicted as similar to that which exists between bride and groom. One who is not a member of that community but nevertheless engages in the study of Torah has committed a violation akin to adultery; he has illicitly intruded upon an intimate and exclusive relationship.3<i class="footnote">Cf., <i>Zohar, Emor</i> 91b.</i>
  It must, of course, be remembered that Torah is not an abstract science. Judaism teaches that Torah study must be pursued for purposes of implementation rather than as a theoretical, intellectual discipline. A non-Jew, who is under no obligation to observe its precepts, would subvert the very purpose of Torah study were he to pursue such study solely for purposes of satisfying intellectual curiosity. Misappropriation of the Torah in this manner is both a form of theft and a violation of the unique relationship which exists between the Torah and its adherents. In this context it is significant to note that Me'iri, <i>Sanhedrin</i> 59a, declares that a non-Jew may study Torah, and indeed acquires merit in doing so, if it is his intention to fulfill the precepts which he studies.
  Me'iri, in his commentary on <i>Sanhedrin</i> 59a, quite apparently views the terminology employed by the Gemara in depicting the nature of this prohibition as metaphoric and explains that the prohibition against a non-Jew studying Torah is rooted in the fear that a non-Jew who becomes proficient in Torah scholarship may be accepted as a Jew and thus be in a position to subvert the religious practices of Jews. R. Solomon Luria, <i>Yam shel Shlomoh, Baba Kamma</i> 4:9, although he does not explicitly state that this is the rationale underlying the prohibition, decries the fact that some Jews in Spain and in oriental countries were wont to provide instruction in Torah studies to non-Jews for personal gain and asserts that this practice contributes to heresy. The possibility that non-Jews, particularly those engaged in missionary activity, might misinterpret the teachings of the Torah, whether consciously or otherwise, and thereby undermine the faith of Jews was indeed, historically speaking, a cogent cause for concern. The prohibition against teaching Torah to a non-Jew serves to thwart such an untoward misuse of Torah.
  Just as non-Jews are prohibited from studying Torah, so are Jews forbidden to teach Torah to gentiles. <i>Tosafot, Haggigah</i> 13a, declares that a Jew who causes a non-Jew to transgress in this manner is guilty of violating the commandment "You shall not place a stumbling block before the blind" (Leviticus 19:14).4<i class="footnote">Cf., <i>Teshuvot Emunat Shmu’el</i>, no. 14, cited by <i>Pitḥei Teshuvah, Yoreh De‘ah</i> 62:2 and R. Ben-Zion Blum, <i>Tel Talpiyot</i>, Sivan 5690.</i> Moreover, the Gemara, <i>Haggigah</i> 13a, states that teaching Torah to a non-Jew is a violation of an admonition inherent in the words of the Psalmist, "He declareth His word unto Jacob, His statutes and His ordinances unto Israel. He hath not done so with any nation; and as for His ordinances, they have not known them" (Psalms 147:19-20). This verse, according to <i>Tosafot</i>, serves to establish a prohibition against teaching Torah to a non-Jew which is independent of any infraction on the part of the non-Jew.5<i class="footnote"><i>Minḥat Ḥinnukh</i>, no. 232, states that Rambam records the prohibition forbidding a non-Jew to study Torah but not the prohibition against a Jew teaching Torah to a gentile because, for Rambam, as distinct from <i>Tosafot</i>, the sole prohibition devolving upon the Jew is the general prohibition against placing a stumbling block before the blind. See also R. Shlomoh Yitzchak Levine, <i>Ha-Pardes</i>, Kislev 5710. R. Yechiel Ya‘akov Weinberg, <i>Seridei Esh</i>, II, no. 92, opines that since in “our day” there exist numerous translations of Scripture and there are non-Jewish scholars “capable of reading the Bible and Talmud” teaching such material to non-Jews does not constitute placing a “stumbling block” before them; cf., however, <i>Teshuvot Besamim Rosh</i>, no. 327.</i>
  Over the course of centuries various questions have arisen with regard to possible exceptions to the prohibition against teaching Torah to non-Jews. One question frequently posed in our age of rampant intermarriage is whether the child of a Jewish father and a non-Jewish mother, who, insofar as Jewish law is concerned, is a non-Jew, may enroll in a Talmud Torah or Day School and, conversely, whether the instructor teaching Torah to a class while such a child is in attendance is guilty of an infraction of Jewish law. This very modern question is addressed by Rabbi Ovadiah Yosef in the Adar 5737 issue of <i>Or Torah</i>, but was discussed much earlier by Rabbi David Hoffmann, <i>Melamed le-Ho'il, Yoreh De'ah</i>, no. 77. An earlier, broader treatment of the topic by Rabbi Yosef is included in <i>Yabi'a Omer</i>, II, <i>Yoreh De'ah</i>. no. 17. The question addressed to Rabbi Hoffmann seems to have been posed by a teacher in the German equivalent of our public school. Apparently, a specified number of hours were designated for religious instruction to be provided on behalf of each student in accordance with his or her religious persuasion. The problem referred to Rabbi Hoffmann involved a child born of a gentile mother and a Jewish father. The child was registered as <i>konfessionslos</i>, but the father nevertheless desired that his son receive religious instruction together with the Jewish children. In his response Rabbi Hoffmann correctly notes that conversion of the child is not an acceptable approach in obviating the problem since "what benefit is there to us in converts such as those who without doubt will desecrate the Sabbath and transgress all commandments?" But, at the same time, Rabbi Hoffmann was loath to counsel expulsion of the child from the class lest the father "forsake the community or create controversy within the community." Rabbi Hoffmann's advice to the teacher was that he explain to the parent that such an education can only lead to conflict and breed disdain for the parent on the part of the child. Since the father is a Sabbath violator, asks Rabbi Hoffmann, "How can the son honor his father if he hears from his teacher of religion that his father is guilty, according to his religious faith, of a capital transgression?" Such counsel may well have been cogent in an age when impious persons were viewed as pariahs but similar advice would fall on deaf ears in an age when, all too frequently, parents of many children in the same peer group are equally unobservant.
  More significantly, insofar as application in our day is concerned, Rabbi Hoffmann offers alternative advice as well and in the process indicates that certain aspects of Torah may be taught to non-Jews with impunity.6<i class="footnote">Cf., the divergent opinion of <i>Tosafot</i> as published in <i>Ein Ya‘akov, Ḥaggigah</i> 13a and cited in <i>Hagahot ha-Baḥ, Ḥaggigah</i> 13a, who maintains that subsequent to revelation at Mt. Sinai non-Jews may no longer be taught the Seven Commandments. For an attempt to explain this difficult position, see <i>Pri ha-Adamah, Hilkhot Talmud Torah</i>, chap. 1; cf., also <i>Teshuvot Pnei Yehoshu‘a</i>, I, <i>Yoreh De‘ah</i>, no. 3. This position is explicitly rejected by <i>Teshuvot Yad Eliyahu</i>, no. 48 and by R. Ovadiah Yosef, <i>Yabi‘a Omer</i>, II, <i>Oraḥ Ḥayyim</i>, no. 15, sec. 13 and <i>Yoreh De‘ah</i>, no. 15, sec. 10. See also R. Yehudah Rosenbaum, <i>Teshuvot Ben Yehudah</i>, no. 50.</i> It may readily be demonstrated that a non-Jew may be taught all matters7<i class="footnote">A sixteenth-century Venetian scholar, R. Elia Menachem Chalfan, states, “Go see how many branches develop out of these seven roots so that if a gentile or Noachide is to know them in accordance with their laws and minutiae he may, and it is necessary for him to, study <i>Sifre, Sifra</i> and all [relevant sections of] the Talmud with permission.” This responsum was published by D. Kaufmann in <i>The Jewish Quarterly Review</i>, IX (1897), 503-508. The quotation cited is a translation of a statement which appears on p. 505. Whether or not “reasons and secrets” associated with Noachide commandments may be taught to non-Jews will be discussed later.</i> pertaining to the fulfillment of the Seven Commandments of the Sons of Noah.8<i class="footnote">Indeed, it appears that they may be taught any matter pertaining to themselves even if not specifically encompassed within the contents of the Seven Commandments. The Noachide Code does not obligate non-Jews to offer sacrifices, yet they are permitted to do so even in our day if they so wish. Rambam, <i>Hilkhot Ma‘aseh ha-Korbanot</i> 19:16, basing himself upon <i>Zavaḥim</i> 116b, states, “… but it is a <i>miẓvah</i> incumbent upon us to teach them how they shall conduct themselves,” i.e., we are not only permitted but obligated to teach them the laws concerning the offering of sacrifices. As cited earlier, <i>Me’iri, Sanhedrin</i> 59a, states that a non-Jew may study Torah if his intention is to fulfill the precepts which he studies.</i> Such a conclusion represents a position which is entirely cogent. Since the Noachide Code is binding upon non-Jews it stands to reason that they must be thoroughly familiar with its contents in order properly to observe its provisions.9<i class="footnote">In opposition to this view, R. Yissachar Graubart <i>Divrei Yissakhar, Yoreh De‘ah</i>, no. 96, citing <i>Teshuvot Maharil</i>, no. 199, which discusses the teaching of Torah to women, states that while a non-Jew may study matters pertaining to the Noachide Code with impunity, a Jew should not give instruction in such matters because the majority do not fulfill the obligations imposed upon them by that code.</i> Moreover, the Noachide Code is the "Torah" of non-Jews. Hence there can be no question of "theft" with regard to appropriation of its contents. Moreover, <i>Shiltei Gibborim</i>, in his comments on Alfasi's citation of <i>Avodah Zarah</i> 20a, declares that non-Jews may be taught the Prophets and Hagiographa so that they may be aware of the "consolation and redemption vouchsafed to Israel." Such study is not forbidden because it serves a proper purpose, viz., to influence in a positive manner the comportment of gentiles vis-à-vis Jews. By the same token, argues Rabbi Hoffmann, they may be taught the narrative portions of the Pentateuch so that they may recognize the omnipotence and grandeur of God and become more aware of His miracles and thereby be spurred to renounce paganism, as is their obligation according to the Noachide Code. Accordingly, Rabbi Hoffmann advises the teacher to divide his time and to devote specific hours of instruction to Bible and to the study of those <i>mizvot</i> which are included in the Noachide Code and to devote the balance of his time to the study of <i>mizvot</i> of a ritual nature which are incumbent only upon Jews. The non-Jewish child would be permitted to participate in the former studies but be excluded from the latter. Rabbi Hoffmann takes it for granted that this arrangement would prove satisfactory to the father since, he argues, there is no logical reason for the father to want his son to study the detailed nature of observances in which the son will not participate. Rabbi Yosef also gives blanket permission for non-Jewish students to participate in classes devoted to the study of Bible and of <i>mizvot</i> which are incumbent upon non-Jews for reasons that will be delineated presently.
  Similar questions are discussed by R. Abraham Zevi Klein, <i>Be'erot Avraham, Oraḥ Hayyim</i>, no. 12; R. Pinchas Teitz, <i>Ha-Pardes</i>, Tammuz 5714, reprinted in <i>Ha-Ma'or</i>, Av-Elul 5726; Rabbi Ephraim Oshry, <i>She'elot u-Teshuvot mi-Ma'amakim</i>, I, no. 14; Rabbi Yechiel Ya'akov Weinberg, <i>Seridei Esh</i>, II, no. 92; Rabbi Menasheh Klein, <i>Mishneh Halakhot</i>, V, no. 172; Rabbi Moses Feinstein, <i>Iggerot Mosheh, Yoreh De'ah</i>, II, no. 132; and R. Isaiah Even-Sapir, <i>Tevunah</i>, Tishri 5715 and <i>No'am</i>, X (5727), 128-142.
  Rabbi Teitz' article was written shortly after the inauguration of his popular Yiddish-language <i>Daf ha-Shavu'a</i> radio program. His question regards the propriety of a similar program in the English language. Although such a program would be directed to a Jewish audience there would exist the distinct possibility that some non-Jews might be found among the members of the radio audience. The propriety of Torah broadcasts in the vernacular is also the subject of Rabbi Even-Sapir's contribution to <i>No'am</i>. Rabbi Klein was asked the identical question with regard to Torah programs on television.
  During World War II Rabbi Oshry was placed in charge of a warehouse in the Kovno ghetto in which the Nazis had assembled rare and valuable rabbinic works. On a number of occasions the Germans demanded of him that he read and translate some of the texts in his custody. Rabbi Oshry examines the question of whether or not compliance with these requests would constitute an infraction of the prohibition against teaching Torah to non-Jews. Rabbi Weinberg was asked whether it was permissible to lecture "on a Talmudic topic" at a non-Jewish university. In his responsum Rabbi Weinberg reports that he first considered the question many years earlier when he himself had been appointed instructor of Jewish studies at the University of Giessen in Germany.
  The question submitted to Rabbi Feinstein concerns a young man, apparently of a non-observant background, about to return home from his <i>yeshivah</i> for the Passover holiday. The young man wished to translate the <i>Haggadah</i> at the <i>seder</i> table so that his parents would be able to fulfill the <i>mizvah</i> as well. His problem was that a relative and his spouse were to be invited by his parents as <i>seder</i> guests. The woman in question had been converted to Judaism by a Reform clergyman. Since in the eyes of Halakhah her status as a non-Jew remains unchanged the student wished to know whether he might translate the <i>Haggadah</i> in her presence.
  The answers to the specific questions posed in each of these responsa is affirmative, although the reasoning advanced by the various decisors is not always identical.
  II. Written Law as Distinct from Oral Law
  The first question which must be analyzed is whether the prohibition against a non-Jew studying Torah is limited to study of the Oral Law only or whether it includes the Written Law as well. The most extreme view in this regard is that recorded in <i>Sefer Hasidim</i>, no. 238, who advises that a Jew should not teach even the Hebrew alphabet to a priest.10<i class="footnote">Teaching the Hebrew alphabet to non-Jews is also forbidden by <i>Dvar Shmu’el</i>, no. 75; R. Chaim Yosef David Azulai, <i>Birkei Yosef, Sheyurei Berakhah, Yoreh De‘ah</i> 246:4; and <i>Teshuvot Pri ha-Sadeh</i>, IV, no. 96. See also R. Ze’ev Wolf Leiter, <i>Teshuvot Bet David</i>, no. 17.</i> However, the phraseology and context of this statement are indicative of prudent advice rather than of a statutory prohibition. Incidents of persecution and arousal of anti-Semitism by clerics claiming proficiency in Jewish law and lore were not at all infrequent during the medieval period. Hence prudence dictated that no assistance be provided to enemies of Judaism in their attempts to distort Jewish teaching for their own malevolent purposes. The <i>Zohar, Aḥarei Mot</i> 73a, also categorically forbids teaching non-Jews "words of Torah" but the reason given is clearly mystic rather than halakhic.11<i class="footnote"><i>Sefer ḥaredim, miẓvot aseh me-divrei kabbalah u-me-divrei soferim ha-teluyot be-peh</i> 4:37, understands the <i>Zohar</i> as frowning upon teaching non-Jews matters pertaining to the Seven Commandments of the Sons of Noah as well; see above, note 3. See also <i>Shnei Luḥot ha-Brit</i>, p. 185, who, following the <i>Zohar</i>, states that one should not teach non-Jews even the Hebrew alphabet. However, <i>Yad Eliyahu</i>, no. 48, understands the <i>Zohar</i> as referring only to the “secrets” of the Torah. Although the practice was decried by later scholars, R. Eliyahu Bachur reports in the introduction to his <i>Mesoret ha-Mesorah</i> that he himself gave instruction in the Hebrew language to non-Jews. R. Ovadiah Sforno is also known to have tutored Reuchlin in Hebrew literature at Rome between 1498 and 1500; see Ludwig Geizer, <i>Johann Reuchlin, Sein Leben und Seine Werke</i> (Leipzig, 1871), pp. 87 and 105. For discussions of the propriety of teaching the Hebrew language to non-Jews see <i>Besamim Rosh</i>, no. 327; <i>Teshuvot Maharaẓ Ḥayes</i>, no. 32; <i>Teshuvot Va-Yomer Yiẓḥak, Oraḥ Ḥayyim</i>, no. 21; <i>Yafeh le-Lev</i>, III, no. 246, sec. 21; <i>Afarkasta de-Anya</i>, no. 46; <i>Teshuvot Ma‘aseh Ish, Yoreh De‘ah</i>, no. 7; <i>Teshuvot Bet David</i>, no. 17; <i>Yabi‘a Omer</i>, II, <i>Yoreh De‘ah</i>, no. 17, sec. 9; and R. Abraham Mordechai Hirschberg, <i>Ha-Pardes</i>, Tammuz 5754.</i>
  In another age and under quite dissimilar circumstances, R. Israel Salanter endeavored to gain acceptance of Talmud as a recognized academic discipline.12<i class="footnote">See Emil Benjamin, <i>R. Israel Lipkin-Salant</i> (Berlin, 1899), pp. 27-29; Louis Ginsberg, <i>Students, Scholars and Saints</i> (Philadelphia, 1958), pp. 160-161; and R. Dov Katz, <i>Tenu‘at ha-Mussar</i> (Tel Aviv, 1958), I, 22.</i> As noted earlier, he sought to have the study of Talmud incorporated in the curricula of European universities and gymnasia. His primary concern, presumably, was to dispel prejudice born of ignorance. One historian speculates that, in addition, R. Israel Salanter was motivated by a desire to enhance the dignity and prestige of the Talmud among Enlightenment figures who, despite their own profession of Judaism, tended to denigrate all rabbinic studies. He perhaps also felt that recognition of Talmud as a respected academic discipline might have a positive effect upon non-observant Jewish students.13<i class="footnote"><i>Tenu‘at ha-Mussar</i>, I, 22.</i>
  Between the polar views forbidding any instruction and permitting all instruction are a significant number of positions which view the prohibition as operative with regard to certain forms of instruction but not with regard to others. Chief among these is the view that the prohibition serves to restrict only instruction in the Oral Law.
  A clear distinction between the Oral and the Written Law is formulated by Rabbi Zevi Hirsch Chajes in his commentary on <i>Sotah</i> 35b and <i>Haggigah</i> 13a as well as in his <i>Teshuvot Maharaz Hayes</i>, no. 32. The Gemara, <i>Sotah</i> 35b, states that gentiles acquired knowledge of the contents of the Pentateuch prior to the entrance of our ancestors into <i>Erez Yisra'el. Maharaz Hayes</i>, without citing specific sources, explains that the "decisors" have long distinguished between the Oral Law and the Written Law. Restrictions with regard to the study of Torah by non-Jews, he declares, apply only to the Oral Law but not the Written Law.
  Although <i>Maharaz Hayes</i> (with one exception, as will be noted later) does not identify the earlier authorities who distinguish between the Oral Law and the Written Law, this distinction may readily be inferred from a comment incorporated by Rabbenu Gershom in his commentary on <i>Baba Batra</i> 21b.14<i class="footnote">Indeed, the verse “… for it is your wisdom and your understanding in the eyes of the nations who will hear all these statutes and say, ‘Surely this great nation is a wise and understanding people’ ” (Deut. 4:6) would seem to indicate that it is the divine intent that non-Jews be aware of the contents of the Pentateuch; cf., R. Chaim Sofer, <i>Maḥaneh Ḥayyim</i>, II, <i>Yoreh De‘ah</i>, no. 46, sec. 3. Alternatively, the verse must be understood as referring to the observance of the statutes; cf., Rashi’s commentary <i>ad locum</i>. See also R. Reuben Margulies, <i>Nefesh Ḥayah, Oraḥ Ḥayyim</i> 334:12.</i> The Gemara declares that although residents sharing a common courtyard cannot prevent one of their group from accepting Jewish pupils for Torah instruction they may legitimately prevent any person who shares their courtyard from providing instruction to non-Jewish students. Since it is, in general, forbidden to teach Torah to non-Jews, the immediate question which presents itself is what type of instruction is under consideration? Rabbenu Gershom comments that the type of instruction under discussion is instruction "in medical texts or <i>mikra</i>," i.e., the Written Law.15<i class="footnote">This distinction between the Written Law and the Oral Law is also found in the earlier cited responsum of R. Elia Menachem Chalfan, <i>Jewish Quarterly Review</i>, IX, 507. This responsum is probably the earliest explicit formulation of a distinction between the teaching of Written Law and Oral Law.</i> The obvious implication is that, when such instruction is provided under conditions which do not cause nuisance to others, the Written Law may indeed be taught to non-Jews.
  A similar distinction may be inferred from the comments of Me'iri, <i>Sanhedrin</i> 59a. Me'iri states that a non-Jew may study Torah if he does indeed intend to fulfill the precepts which he studies, but is deserving of punishment if he studies solely in order to acquire knowledge of "our Torah and our Talmud." Me'iri's inclusion of the phrase "our Talmud" would indicate that it is only the study of the Oral Law which is objectionable.16<i class="footnote">See <i>Bet ha-Beḥirah al Masekhet Sanhedrin</i>, ed. Abraham Sofer (Jerusalem, 5731), p. 229, n. 3. However, R. Ovadiah Yosef, <i>Yabi‘a Omer</i>, II, <i>Yoreh De‘ah</i>, no. 17, understands Me’iri’s phrase “our Torah” as including the Written Law.</i> Again, in his commentary on <i>Haggigah</i> 13a, Me'iri speaks of "secrets of the Torah" which may not be imparted to non-Jews. It may be inferred that the Written Law, which is readily accessible to all, may be taught to a non-Jew. Among later authorities, Rabbi Naphtali Zevi Yehudah Berlin, <i>Meshiv Davar</i>, II, no. 77,17<i class="footnote">See also R. Naphtali Zevi Yehudah Berlin’s commentary on the Bible, <i>Ha‘amek Davar, Harḥev Davar</i>, Leviticus 18:15.</i> rules that one may teach the Written Law to non-Jews as do Rabbi Judah Asad, <i>Teshuvot Maharya, Yoreh De'ah</i>, no. 135 and the son of this author in a gloss appended to <i>Teshuvot Maharya, Oraḥ Hayyim</i>, no. 4. <i>Meshiv Davar</i> points to the fact that "God commanded Joshua to translate the Pentateuch into seventy languages," presumably for the edification of non-Jews.18<i class="footnote">In response to <i>Meshiv Davar</i>’s argument, <i>Divrei Yissakhar, Yoreh De‘ah</i>, no. 96, states that only the content of the seven Noachide commandments were made available for non-Jews. There is, however, no hint of this distinction in the talmudic discussion recorded in <i>Sotah</i> 35b. See also Rashi, Deuteronomy 1:5, who interprets that passage as meaning that Moses expounded the Torah in seventy languages, presumably for the edification of the seventy gentile nations. See, however, <i>Arugat ha-Bosem, Oraḥ Ḥayyim</i>, no. 213, who opines that Moses’ exposition was for the benefit of Jews only and that he taught Torah in seventy languages in anticipation of the exile of Israel and the dispersal of Jews among the seventy nations. Cf., also <i>Magen Avraham, Oraḥ Ḥayyim</i> 334:17. See also R. Abraham I. Kook, <i>Iggerot ha-Re’iyah</i> (Jerusalem, 5722), I, no. 90, sec. 5, who declares that no normative halakhah can be derived from this narrative since the divine command was limited to a particular incident and occurred in conjunction with the exodus from Egypt and the revelation at Mount Sinai. During this unprecedented and unparalleled historical epoch the Divine Presence was perceived in some manner even by the gentile nations.</i> A similar distinction is made by numerous other authorities including <i>Sefer ha-Mezaref, no. 97; Rabbi Jonathan Eibeschutz, <i>Ahavat Yonatan, Parshat Beshalaḥ; Ma'or va-Shemesh, Parshat Hukat;</i> R. Jacob Meskin, <i>Mishpat le-Ya'akov</i>, no. 24; and <i>Anaf Yosef, Haggigah</i> 13a.19<i class="footnote">According to the authorities who maintain that non-Jews may study the Written Law it is somewhat difficult to understand the negative attitude toward translation of Scripture expressed in <i>Midrash Tanḥuma, Parshat Ki Tissa</i>, 34, <i>Soferim</i> 1:6, and elsewhere, <i>Shulḥan Arukh, Oraḥ Ḥayyim</i> 580:2, states that it is proper to fast on the eighth day of Tevet because on that day the Torah was translated into Greek in the time of Ptolemy “and there was darkness upon the world for three days.” [The statements in <i>Soferim</i> 1:6 and <i>Oraḥ Ḥayyim</i> 580:2 with regard to the translation at the behest of Ptolemy do not appear to present a difficulty since the published text of <i>Soferim</i> 1:6 indicates that the source of grief was the inadequacy of the translation, apparently a reference to the intentional mistranslation of a number of passages as reported in <i>Megillah</i> 9a. <i>Tanḥuma</i> cannot be resolved in this manner because it specifically decries translation as a means of making Torah accessible to non-Jews.] <i>Teshuvot Maharaẓ Ḥayes</i>, no. 32, resolves this difficulty by stating that making the Written Law available to non-Jews is not decried in these situations because of the prohibition against non-Jews studying Torah, but because the gentile nations failed to adhere to the Noachide Code, as stated in <i>Avodah Zarah</i> 2b. Under such circumstances, knowledge of Torah serves no beneficial purpose, particularly since the meaning of the Torah was distorted by them. However, continues <i>Maharaẓ Ḥayes</i>, there exists no continuing objection to translation of the Bible since translations are now readily available and the teaching of Scripture to non-Jews is not intrinsically forbidden. Cf., R. Moses Sofer, <i>Torat Mosheh, Parshat Shemot</i>, and <i>Teshuvot Arugat ha-Bosem, Oraḥ Ḥayyim</i>, no. 213. See, however, R. Ezekiel Landau, <i>Ẓelaḥ al Masekhet Berakhot</i> (New York, 5716), addendum to introduction, p. 110, who decries translation of the Bible. This statement should not be confused with statements against Mendelssohn’s translation of the Bible attributed to R. Ezekiel Landau. The statement contained in the introduction to <i>Ẓelaḥ</i> decries all translations but is not cited by R. Landau’s biographers or by scholars assessing his role in the Mendelssohn controversy. If this addendum is authentic it appears to be at variance with the same authority’s approbation of a facile German translation designed to aid students of the Hebrew text; see Ben-Zion Katz, <i>Rabbanut, Ḥasidut, Haskalah</i> (Tel Aviv, 1956), pp. 198-199 and Shlomoh Wind, <i>R. Yeḥezkel Landau: Toldot Ḥayyav u-Pe‘ulotav</i> (Jerusalem, 5721), pp. 118-119.</i></i>
  Nevertheless, some authorities fail to make any distinction between the Oral and the Written Law and view the prohibition as encompassing both. This certainly seems to be the position of <i>Shiltei Gibborim</i> as expressed in his previously cited comments. <i>Shiltei Gibborim</i> permits the teaching of the Prophets and the Hagiographa to non-Jews (and, according to Rabbi Hoffmann, the narrative sections of the Pentateuch as well). He certainly implies that other portions of the Written Law, viz., the sections of the Pentateuch dealing with law and ritual, may not be taught to non-Jews.20<i class="footnote">Rabbi Oshry appears to be in error in his citation of <i>Shiltei Gibborim</i> in support of the position of <i>Maharaẓ Ḥayes</i>.</i>
  R. Zevi Hirsch Chajes in his comments on <i>Haggigah</i> 13a and in <i>Teshuvot Maharaz Hayes</i>, no. 32, cites <i>Shitah Mekubezet, Ketubot</i> 28a, in substantiation of his distinction between the Written Law and the Oral Law.21<i class="footnote"><i>Shitah Mekubeẓet</i> is also cited by R. Jacob Meskin, <i>Mishpat le-Ya‘akov</i>, no. 24, in establishing a distinction between the Oral and the Written Law.</i> Indeed, <i>Shitah Mekubezet</i> is the sole source cited by <i>Maharaz Hayes</i> in drawing this distinction. Nevertheless, as Rabbi Oshry correctly points out, a distinction between the Oral and the Written Law is advanced only tentatively by <i>Shitah Mekubezet</i> while in his concluding remarks <i>Shitah Mekubezet</i> states that references to Torah study forbidden to non-Jews are general in nature and hence presumably refer to the Written Law as well. Accordingly, <i>Shitah Mekubezet</i> must be numbered among those authorities who forbid the teaching of even the Written Law to non-Jews.
  Among latter-day decisors there are a number who do not distinguish between the Written and the Oral Law with regard to the prohibition against teaching Torah to non-Jews. Chief among those who explicitly reject such a distinction is Rabbi Joseph Saul Nathanson in the comments appended to his letter of approbation which appears among the prefatory pages of R. Judah Asad's <i>Teshuvot Maharya</i>. His argument is that no such distinction is made by <i>Tosafot, Baba Kamma</i> 38a,22<i class="footnote"><i>Teshuvot Divrei Yissakhar, Yoreh De‘ah</i>, no. 96, similarly cites the comments of <i>Tosafot, Ḥaggigah</i> 13a, in rejecting this distinction.</i> or by <i>Yam shel Shlomoh, Baba Kamma</i> 4:9. This argument, however, does not appear to be conclusive. The comments of both <i>Tosafot</i> and <i>Yam shel Shlomoh</i> focus upon the talmudic narrative concerning two Roman officials who were sent to the Sages by their government to study Torah. The problem to which <i>Tosafot</i> and <i>Yam shel Shlomoh</i> address themselves is, in light of the prohibition against teaching Torah to non-Jews, how was it permissible for the Sages to accede to this request? R. Joseph Saul Nathanson draws attention to the failure of these authorities to draw a distinction between the Oral and the Written Law in resolving this difficulty. Their failure to do so, he argues, indicates that they regard any such distinction as invalid. However, examination of the problem as formulated by <i>Tosafot</i> and <i>Yam shel Shlomoh</i> reveals that such a distinction, even if valid, would not dispel the difficulty. The Gemara records that, <i>inter alia</i>, the Sages instructed the non-Jewish emissaries with regard to the laws governing liability for damages in the event that an ox belonging to a Jewish master gores an ox belonging to a non-Jew and vice versa. The provisions of law which are cited are clearly part of the Oral23<i class="footnote">Cf., however, <i>Teshuvot Divrei Yissakhar, Yoreh De‘ah</i>, no. 97, who, in another context, remarks that perhaps “explanation” of the Written Law is considered as part of the Written Law.</i> rather than the Written Law.24<i class="footnote">The distinction between the Written and the Oral Law is also rejected by <i>Teshuvot Va-Yomer Yiẓḥak, Oraḥ Ḥayyim</i>, no. 21; <i>Yafeh le-Lev</i>, III, no. 246, sec. 21; <i>Teshuvot Divrei Yissakhar, Yoreh De‘ah</i>, no. 96; <i>Teshuvot Maḥaneh Ḥayyim</i>, II, <i>Yoreh De‘ah</i>, no. 46, sec. 3; <i>Teshuvot Kiryat Ḥanah David</i>, II, <i>Yoreh De‘ah</i>, no. 13; <i>Sedei Ḥemed, Pe’at ha-Sadeh, ma‘arekhet ha-alef</i>, no. 102; and R. Ovadiah Yosef, <i>Yabi‘a Omer</i>, II, <i>Yoreh De‘ah</i>, no. 17, secs. 6-7 and 11. See also R. Fichel Cichanowicz, <i>Torat Yeruḥam</i>, I, <i>Oraḥ Ḥayyim</i>, no. 2. Cf., R. Gedalia Felder, <i>Tanya Rabbati, Pri Yeshurun</i>, pp. 135-137 and 165-167.</i>
  Rabbi Yosef and Rabbi Oshry both infer from the comments of Maharsha, <i>Shabbat</i> 31a, that this authority also refuses to make a distinction between the Written and the Oral Law. The Gemara reports that Hillel agreed to the conversion of a non-Jew who wished to become a proselyte in order that the latter might be appointed High Priest, but only after teaching him Torah so that the convert was aware that he would not be qualified for this office. It is evident that in this instance Hillel taught Torah to a non-Jew despite the prohibition against doing so. Maharsha states that it was permissible for Hillel to teach Torah to the non-Jew because it is permissible to teach Torah to a prospective convert. A much simpler explanation would have been that the requirement that a High Priest be a lineal descendant of Aaron is readily obvious upon even superficial study of the Bible and requires no knowledge of the Oral Law. A distinction between the Oral and the Written Law would readily have dispelled the question raised by Maharsha. Failure to supply this answer indicates that Maharsha does not recognize the validity of any such distinction.
  III. In Contemplation of Conversion
  As has been noted, Maharsha, <i>Shabbat</i> 31a, permits the teaching of Torah to a prospective proselyte. Maharsha's position is disputed by <i>Teshuvot R. Akiva Eger</i>, no. 41, and by the Sephardic authority, R. Chaim Moda'i, cited in <i>"Kuntres Zikharon la-Rishonim," Berakh Mosheh</i>, p. 159a.25<i class="footnote">See also <i>Teshuvot Bet David</i>, no. 17, who endorses the position of R. Akiva Eger.</i>
  Support for Maharsha's position is found in the comments of Me'iri, <i>Sanhedrin</i> 59a. Me'iri states explicitly that it is permitted to give instruction to a prospective convert. Indeed, Me'iri goes beyond Maharsha's position and declares that a non-Jew is forbidden to study Torah only if he does not intend to apply what he has learned in practice. Me'iri is thus quite consistent in permitting Torah study on the part of a prospective convert. <i>Teshuvot Erez Tovah</i>, no. 2, sec. 3, finds evidence bolstering the position of Maharsha in a midrashic statement. <i>Midrash Rabbah</i>, Deut. 1:18, implies that although a non-Jew dare not observe the Sabbath he may do so with impunity once he has undertaken to convert even though he has not yet undergone the conversion ritual. [It may be noted that <i>Tosafot Yeshanim, Yevamot</i> 48b, opines that a non-Jew may observe the Sabbath under such circumstances.] Similarly, argues <i>Erez Tovah</i>, the prohibition against studying Torah does not apply to a non-Jew who has reached a decision to convert.26<i class="footnote"><i>Teshuvot Ben Yehudah</i> asserts that even according to Maharsha a candidate for conversion may be taught Torah only if the prospective convert has made a definite decision to undergo conversion immediately but the <i>Bet Din</i> insists upon delay. If, however, the candidate is not prepared to convert immediately he may not be taught Torah, argues <i>Teshuvot Ben Yehudah</i>, for “perhaps he will not convert subsequently.”</i>
  R. Chaim Sofer, <i>Maḥaneh Hayyim</i>, I, no. 7, rules that a prospective convert may be taught the Written Law and definitive halakhot without accompanying analysis. <i>Maḥaneh Hayyim</i> bases this ruling upon the thesis that the study of the Written Law and of definitive halakhot is forbidden to non-Jews only by virtue of rabbinic decree. This decree, asserts <i>Maḥaneh Hayyim</i>, does not extend to non-Jews preparing for conversion.
  <i>Teshuvot Minḥat Elazar</i>, IV, no. 63, rules that it is imperative that a candidate for conversion be taught the <i>shema</i> and the order of prayer so that he may be able to fulfill those obligations immediately upon conversion. Failure to do so prior to conversion, he opines, constitutes "placing a stumbling block before the blind."27<i class="footnote">See below, note 35.</i>
  IV. "Reasons and Secrets"
  Another limitation upon the prohibition against teaching Torah to non-Jews is expressed by Maharsha, <i>Haggigah</i> 13a. Maharsha states that the prohibition is limited to instruction in the "reason and secret of the <i>mizvot</i>."28<i class="footnote">The Gemara, <i>Ketubot</i> 111a, speaks of a solemn oath sworn by Israel not to reveal “the secret.” Rashi, in one explanation, states that this oath binds Jews not to reveal the “reasons of the Torah.”</i> This position is based on the fact that the terminology employed in the formulation of the prohibition is not: "It is not permitted to teach the words of Torah to non-Jews," but rather: "It is not permitted to <i>give over</i> the words of Torah to non-Jews."29<i class="footnote"><i>Zekan Aharon</i>, II, no. 71, equates the entire Oral Law with “reasons and secrets.” Other authorities understand the phrase in a much narrower sense; see, for example, <i>Mishpat le-Ya‘akov</i>, no. 24.</i> Similarly, Me'iri, <i>Haggigah</i> 13a, speaks of a prohibition against transmitting "secrets of the Torah" to a non-Jew. Maharsha states that the prohibition against teaching "reasons and secrets" extends to instruction in these aspects of Noachide commandments as well.30<i class="footnote">See <i>Mishpat le-Ya‘akov</i>, no. 64, who cites an explanation advanced by <i>Keter ha-Melekh</i> in support of this distinction. The biblical passage containing the prohibition reads, “He declareth His word unto Jacob, His statutes and His ordinances unto Israel.” Jews are recipients of both <i>ḥukkim</i> and <i>mishpatim</i>, statutes and ordinances. With regard to non-Jews the Psalmist continues, “He hath not done so with any nation; and as for His ordinances, they have not known them.” Statutes have been bestowed upon non-Jews, but not ordinances. The distinction drawn in rabbinic sources between <i>ḥukkim</i> and <i>mishpatim</i> is well known: <i>ḥukkim</i> are laws for which no reason is given; <i>mishpatim</i> manifest a readily perceived rationale. Non-Jews are recipients of <i>ḥukkim</i>, i.e., unexplained statutes, but are not privileged to receive laws as ordinances whose reasons are conveyed to them. Therefore, continues the explanation, they may be taught Torah as <i>ḥukkim</i>, unexplained law, but not the reasons and explanations associated with <i>mishpatim;</i> cf., <i>Midrash Rabbah</i>, Exodus 30:6. See also R. Elia Menachem Chalfan, <i>Jewish Quarterly Review</i>, IX, 504, who notes that the numerical equivalent of the word <i>“khen”</i> in the passage <i>“lo asah khen le-khol goy”</i> is identical with that of the word <i>“sod,”</i> meaning “secret.” Cf., R. Ovadiah Yosef, <i>Yabi‘a Omer</i>, II, <i>Yoreh De‘ah</i>, no. 17, sec. 8, who states that despite his use of the terms “reason” and “secret,” Maharsha intended to forbid only “secrets” but does not prohibit either “reasons” or explanations which enable the non-Jew to make proper deductive inferences.</i> In direct opposition to this latter point, Me'iri, <i>Sanhedrin</i> 59a, indicates that insofar as the content of the Noachide Code is concerned there are no limitations upon the nature of instruction which may be provided. It would appear then, that, according to Maharsha, there is no restriction upon teaching the factual content of any portion of the Torah to non-Jews.31<i class="footnote">This also appears to be the position of Rashbam, <i>Baba Batra</i> 115b.</i> <i>Teshuvot Be'er Sheva, Be'er Mayim Hayyim</i>, no. 14, makes a similar distinction between "reasons and secrets" and other aspects of Torah study insofar as the prohibition is concerned, but nevertheless cautions against teaching Torah in any form to non-Jews. A similar position is maintained by <i>Teshuvot R. Eliyahu Mizraḥi</i>, no. 57. This authority adds, however, that it is forbidden to disclose the rationale underlying a <i>mizvah</i> or law only when it is possible to avoid doing so. When, however, one cannot readily extricate oneself from such a situation even this information may be provided.
  Maharsha, in his comments, makes no reference to a distinction between study of the Seven Noachide Commandments and other aspects of Torah. Since he fails to draw such a distinction there appears to be strong reason to assume, as he has been stated earlier, that Maharsha does permit a non-Jew to study any area of Torah so long as he avoids the "reasons and mysteries" of the <i>mizvah</i>. Maharsha was certainly understood in this manner by <i>Teshuvot Yad Eliyahu</i>, no. 48 and <i>Teshuvot Ma'aseh Ish, Yoreh De'ah</i>, no. 7.
  However, one recent authority, R. Aaron Walkin, <i>Teshuvot Zekan Aharon</i>, II, no. 71, argues that this <i>argumentum ad silencium</i> is entirely fallacious and that, quite to the contrary, when Maharsha's comments are examined in context it becomes evident that this is not at all his intention. The ban against a non-Jew studying Torah is formulated in the Gemara in two places. <i>Sanhedrin</i> 59a cites the words of R. Yoḥanan who declared, "A non-Jew who engages in the study of Torah is culpable of death." <i>Haggigah</i> 13a records the dictum of R. Ami who stated, "It is not permitted to give over the words of Torah to a non-Jew." Maharsha's distinction is predicated upon the terminology employed by R. Ami. R. Yoḥanan's statement is more general in nature and does not lend itself to the same inference. Indeed, R. Ami's statement, which is based upon a passage in Psalms seems redundant, as noted by <i>Tosafot</i>, since R. Yoḥanan had already posited a pentateuchal prohibition, viz., "Moses commanded us the Torah, an inheritance for the community of Jacob." It is this difficulty which Maharsha seeks to dispel. R. Yoḥanan's dictum is all-encompassing and proscribes Torah study of any nature, excluding only the study of the Seven Noachide Commandments. Study of the latter are specifically permitted to non-Jews as stated in <i>Sanhedrin</i> 59a. R. Ami's statement, declares <i>Zekan Aharon</i> in his analysis of Maharsha's comments, serves to explicate the dictum of R. Yoḥanan. R. Ami's intent is to circumscribe the exception admitted by R. Yoḥanan, i.e., study of the Seven Commandments. Although a non-Jew may study the Seven Commandments, declares R. Ami, he may not be introduced to their "reasons and mysteries." According to this understanding of Maharsha, other areas of Torah study are totally forbidden to non-Jews on the basis of R. Yoḥanan's statement and are not within purview of R. Ami's dictum.32<i class="footnote">See also <i>Sedei Ḥemed, ma‘arekhet ha-alef</i>, no. 102; <i>Yabi‘a Omer</i>, II, <i>Yoreh De‘ah</i>, no. 17, sec. 9; and Rabbi Even-Sapir, <i>No‘am</i>, X (5727), 140, who similarly understand the halakhah which may be deduced from Maharsha’s comments. These authorities, however, provide no basis for their interpretation of Maharsha’s position.</i>
  Maharsha's distinction between "reasons and secrets" and other aspects of Torah study is not accepted by all authorities. Maharsha's position is based entirely upon use of the phrase <i>"ain moserin"</i> which means "It is not permitted to give over" or "It is not permitted to deliver." Rabbi Weinberg, citing <i>Teshuvot Maharaz Hayes</i>, no. 32, points out that <i>Tosafot</i> must certainly reject any inference based upon considerations of phraseology because the textual reading of the Gemara as cited by <i>Tosafot Baba Kamma</i> 38a is "One who teaches Torah to non-Jews transgresses a positive commandment" and does not at all contain the phrase "<i>ain moserin</i>."
  V. Other Exclusions
  1. Intensity of Study
  Another significant limitation upon this prohibition is found in the previously cited gloss appended to <i>Teshuvot Maharya, Oraḥ Hayyim</i>, no. 4. The Gemara states that a non-Jew who is <i>osek be-Torah</i>, i.e., one who "engages" in Torah, commits a transgression. The identical verb is included in the formula of the blessing recited each morning in praise of God who commanded His people "<i>la-asok</i>," to "engage," in the words of Torah. <i>Taz, Oraḥ Hayyim</i> 47:1, defines this term as connoting not merely study, but intellectual engagement in the sense of exhaustive analysis and mental travail. Citing <i>Sefer ha-Mezaref</i>, no. 97, the author of the gloss appended to <i>Teshuvot Maharya</i> argues that only this type of intense study is forbidden to a non-Jew, but that cursory study is not at all forbidden. Rabbi Jacob Emden, in a gloss to <i>Sanhedrin</i> 59a, makes a similar point and explains why it is that only this type of study is forbidden. R. Emden declares that only study and investigation which involves elucidation or clarification of otherwise incompletely understood matters is forbidden and is considered to be an act of "theft" on the part of the non-Jew because it is properly the function of Jews to plumb the depths of Torah in order to discover all possible insights by means of study and penetrative analysis. A non-Jew who achieves priority in uncovering a hitherto unknown meaning or explanation has "stolen" a prerogative of the Jewish people. This is also the opinion of Rabbi Naphtali Zevi Yehudah Berlin, <i>Meromei Sadeh, Haggigah</i> 13a, as well as of <i>Teshuvot She'ilat Ya'akov</i>, no. 67, and is accepted as authoritative by Rabbi Weinberg. It should also be noted that <i>Tiferet Yisra'el, Zevaḥim</i> 14:4, states that the prohibition against teaching Torah to non-Jews restricts only explanation or expository clarification but that the factual content of the law may be taught to a non-Jew.33<i class="footnote"><i>Teshuvot Maḥaneh Ḥayyim</i>, I, no. 7, draws a similar distinction but maintains that teaching the factual content of halakhot is forbidden by rabbinic decree.</i>
  2. Regularity of Study.
  Another significant limitation is found in the commentary of <i>Turei Even, Haggigah</i> 13a. Commenting upon the fact that there are occasional references in the Gemara to Sages who themselves transmitted information concerning Jewish law to non-Jews, <i>Turei Even</i> states that the prohibition against teaching Torah to non-Jews applies only to instruction provided <i>be-kevi'ut</i>, i.e., on a regular, ongoing basis. However, non-Jews may be provided with instruction in an occasional manner, particularly when it is necessary to do so in order to maintain amicable relationships. The phraseology employed by <i>Shitah Mekubezet, Ketubot</i> 28a, supports this distinction. That commentary speaks of a prohibition against teaching Torah <i>be-kevi'ut</i>. It may readily be inferred that on an occasional basis such instruction is indeed permissible.
  The talmudic references to various incidents in which Sages of the Talmud imparted information of this nature is explained by <i>Teshuvot Yad Eliyahu</i>, no. 48, in a somewhat different manner. According to <i>Yad Eliyahu</i>, a Jew may not provide instruction to a non-Jew on his own initiative. However, when such information is expressly solicited, he may respond in an accurate manner "for purposes of sanctification of the Name lest they say that they have conquered by means of their words and [lest] they speak evil, Heaven forfend, against our holy Torah."34<i class="footnote">This position is accepted by <i>Yabi‘a Omer</i>, II, <i>Yoreh De‘ah</i>, no. 17, secs. 5 and 12. See also R. Shlomoh Yitzchak Levine, <i>Ha-Pardes</i>, Kislev 5710.</i> Similarly, <i>Pri ha-Sadeh</i>, II, no. 71, declares that such information may be imparted to non-Jews when the motivation for doing so is a desire for the defense and honor of the Torah rather than edification of the non-Jew. Thus, for example, Jewish scholars may engage in disputations with gentiles in order that the teachings of the Torah not be misrepresented.35<i class="footnote"><i>Teshuvot Maḥaneh Ḥayyim</i>, II, <i>Yoreh De‘ah</i>, nos. 45 and 46, draws a distinction which is almost the reverse in nature. A question was posed to him based upon the obligation of the <i>Bet Din</i> to inform the prospective proselyte of some commandments both “easy” and “difficult.” How can this obligation be reconciled with the prohibition against teaching Torah to a non-Jew according to the authorities who maintain that such instruction is forbidden even in contemplation of conversion? [This question is raised and left unanswered by <i>Minḥat Elazar</i>, IV, no. 64.] He answers that the prohibition, which is described by the Gemara as being akin in nature to theft or adultery, is operative only when the non-Jew solicits instruction. Only when the non-Jew seeks alienation of Torah from Jews in his own favor is he guilty of unlawful appropriation of the Torah. When a Jew voluntarily initiates the process of instruction, declares <i>Maḥaneh Ḥayyim</i>, no act of “theft” or “adultery” occurs. Subsequently, in the concluding section of responsum no. 46, <i>Maḥaneh Ḥayyim</i> states that providing instruction to a non-Jew is forbidden only if the non-Jew is actually desirous of acquiring knowledge, but not if the purpose is to correct erroneous views held or publicized by the non-Jew for, in such instances, “the non-Jew does not wish to know Torah and also the Jew does not intend to teach him Torah.…” Cf., <i>Teshuvot Maḥaneh Ḥayyim</i>, I, no. 7.</i>
  3. Mixed Audiences
  Rabbi Weinberg, Rabbi Feinstein, Rabbi Klein and Rabbi Yosef state that there is no objection to teaching Torah to Jews in the presence of non-Jews even though it is inevitable that the non-Jews receive the instruction as well.36<i class="footnote">See however R. Akiva Sofer, <i>Oẓrot Yerushalayim</i>, ed. Zevi Moskowitz, no. 18 (5717), sec. 224, who forbids English-language radio programs of this nature because of the likelihood of there being non-Jews among the audience and also forbids Torah programs in Hebrew because the program may be played in unseemly places.</i> Rabbi Feinstein declares that the prohibition against teaching Torah to non-Jews is limited to intentional transmission of Torah to non-Jews. As evidence for his thesis he cites the fact that Tabi, a servant of Rabban Gamaliel, is reported to have been a proficient scholar. Rabbi Feinstein opines that Tabi acquired vast knowledge as a result of his attendance upon the discussions of Rabban Gamaliel and his colleagues who did not refrain from the study of Torah in his presence.37<i class="footnote">Rabbi Feinstein’s analysis is compatible with the explanation found in <i>Korban Edah</i>’s commentary on the Palestinian Talmud, <i>Megillah</i> 5:3; <i>Pnei Mosheh</i>, loc. cit., however, states that Rabban Gamaliel instructed Tabi directly.</i> Rabbi Yosef sanctions this practice on different grounds. He avers that it is permissible to teach Torah to Jews even in the presence of non-Jews by virtue of reliance upon the position of the <i>Arukh</i> who maintains that a <i>pesik reisha de-lo niḥa leh</i>, i.e., an act which produces an unintentional and undesired ancillary effect, is permissible even though the resultant effect is an act which, if intended, would be forbidden. Rabbi Klein appropriately points out that, in accordance with this line of reasoning, such instruction is indeed forbidden if the Jew really does intend to teach the non-Jew as well.38<i class="footnote">Rabbi Even-Sapir presents a rather tenuous argument designed to demonstrate that providing Torah instruction on the radio does not involve a violation of “Thou shalt not place a stumbling block.” <i>Komeẓ le-Minḥah</i>, no. 232, declares that this prohibition is not operative vis-à-vis non-Jews if the non-Jew is unaware that the act is forbidden. To be sure, a non-Jew is culpable even if he transgresses through ignorance of a prohibition, as definitively stated by Rambam, Hilkhot Melakhim 10:1; nevertheless, a Jew bears no responsibility for enlightening a non-Jew who is ignorant of the law in order to preserve him from transgression. Such obligations flow from the concept of surety (<i>arevut</i>) which, in turn, is engendered by the reciprocal covenantal relationship entered into by the entire Jewish community at <i>Arvot Mo’av</i> prior to entrance into the Promised Land. Gentiles were not parties to this covenant and, hence, Jews do not bear religious responsibility for the conduct of non-Jews; see <i>Shakh, Yoreh De‘ah</i> 151:4. Since it may be assumed that non-Jews tuning in to such broadcasts are unaware of the prohibition against Torah study by gentiles, argues Rabbi Even-Sapir, the prohibition against placing a stumbling block does not apply.</i>
  It should be noted that evidently neither Rabbi Feinstein's nor Rabbi Yosef's line of reasoning was acceptable to R. Judah Asad, since that authority, <i>Teshuvot Maharya, Oraḥ Hayyim</i>, no. 4, decries the publishing of translations of works of Torah scholars as "placing a stumbling block before the blind," i.e., making such works accessible to non-Jews as a result of publication in the vernacular constitutes the placing of a "stumbling block" before them. <i>Maharya</i> views publication of Torah works in the vernacular as impermissible even though such publication is undertaken for the benefit of a Jewish readership.39<i class="footnote">See also <i>Teshuvot Yad Eliyahu</i>, no. 48, who similarly forbids selling of sacred books to non-Jews unless they contain material dealing with the seven Noachide commandments. The sale of sacred books to non-Jews is also forbidden by R. Chaim Yosef David Azulai, <i>Birkei Yosef, Shiyurei Berakhah, Yoreh De‘ah</i> 246:5. R. Isaiah Even-Sapir, <i>No‘am</i>, X (5727), 142, opines that even for these authorities there exists no prohibition with regard to such sale when similar works are already readily accessible.</i>
  4. Noachide Laws and Jurisprudence
  As has been shown earlier, non-Jews may be given instruction with regard to matters pertaining to the Noachide Code.40<i class="footnote">See above, note 6.</i> Rabbi Weinberg rules that lectures before a non-Jewish audience on matters of jurisprudence are unquestionably permissible since non-Jews are bound to fulfill the commandment of <i>dinin</i>, which is one of the Seven Noachide Commandments, and encompasses Torah laws relating to all matters pertaining to ownership of property and financial liability.41<i class="footnote">The specific nature of the <i>miẓvah</i> of <i>dinin</i> is the subject of controversy between Rambam and Ramban. Ramban, in his commentary on the Bible, Genesis 34:13, understands the commandment as a general obligation with regard to the establishment of laws and regulations governing commercial and interpersonal behavior essential to the maintenance of a social order, e.g., laws governing theft, fraud, prompt payment of wages, bailment, etc. <i>Teshuvot Rema</i>, no. 10 and <i>Teshuvot Ḥatam Sofer</i>, VI, no. 14, maintain that in these areas Jewish law is incorporated in the Noachide Code in all its details by virtue of the commandment concerning <i>dinin</i>. Rambam understands <i>dinin</i> as binding Noachides to punish transgressors for infractions of the first six Noachide commandments. Nevertheless, <i>Ḥatam Sofer</i>, basing himself upon <i>Teshuvot Rema</i>, avers that Rambam does not reject as binding upon Noachides the obligations recognized by Ramban under the rubric of <i>dinin. Ḥatam Sofer</i> maintains that, according to Rambam, all such matters are subsumed under the commandment banning theft. While Rabbi Weinberg’s reference to <i>dinin</i> is obviously a reference to Ramban’s position as understood by <i>Teshuvot Rema</i> and <i>Teshuvot Ḥatam Sofer</i>, it is also substantively reflective of <i>Ḥatam Sofer</i>’s understanding of Rambam’s position regarding the normative obligations of Noachides, although for Rambam such obligations flow from the prohibition against theft rather than from the <i>miẓvah</i> of <i>dinin</i>. It should, however, be noted that R. Naphtali Zevi Yehudah Berlin, <i>Ha‘amek She’elah, She’ilta</i> 2:3, understands Ramban to be of the opinion that, while non-Jews are commanded to establish a system of jurisprudence and tort liability, the detailed formulation of such a system is left to their discretion and need not reflect the provisions of Torah law which are binding upon Jews. This is also the position of R. Iser Zalman Meltzer, <i>Even he-Azel, Hilkhot Malveh ve-Loveh</i> 27:1.</i>
  5. For Intellectual Purposes
  Although he expresses some doubt with regard to the matter, Rabbi Weinberg endeavors to show that according to Rambam, Hilkhot Melakhim 10:9, the prohibition against teaching Torah to a non-Jew is designed to establish a readily determinable distinction between Jews and non-Jews and to prevent non-Jews from masquerading as Jews. Hence, he argues, the study of Torah is forbidden to a non-Jew only if he does so in the manner of a Jew, i.e., he seeks to fulfill a <i>mizvah</i> thereby. However, if his intent is purely intellectual, argues Rabbi Weinberg, there is no prohibition against such study.42<i class="footnote">Cf., R. Zalman Zevi Aufhausen, <i>Oẓar ha-Vikuḥim</i> (Jerusalem, 5729), pp. 182-183, who states that the prohibition is limited only to teaching Torah to gentiles who seek such knowledge solely for purposes of contentiousness (<i>le-kanter</i>) but not to those whose quest for knowledge is genuine. Of course, no halakhic inferences may be drawn from statements made in the context of a disputation.</i>
  6. Coercion
  A situation similar to that which confronted Rabbi Oshry is the subject of a discussion by <i>Tosafot, Baba Kamma</i> 38a. <i>Tosafot</i> rules that the prohibition against teaching Torah to non-Jews is suspended in face of a decree of the ruling authorities since failure to comply would result in endangerment of life. Such considerations were certainly germane during the period of the Nazi occupation.
  7. Christians
  Of particular significance with regard to the applicability of this prohibition in the present age is <i>Teshuvot ha-Rambam</i>, no. 364 (ed. Chaim Freimann).43<i class="footnote">Also published in <i>Teshuvot ha-Rambam</i>, ed. Joshua Blau (Jerusalem, 5718), I, no. 149. A somewhat shorter version of this responsum permitting instruction of Christians but omitting any reference to Moslems appears in <i>Pe’er ha-Dor</i> (Amsterdam, 5525), no. 50. Rambam’s distinction between Jews and Moslems, formulated in response to a query addressed to him by a student of R. Ephraim of Zur, is also quoted in <i>Teshuvot R. Mosheh Alsakar</i>, no. 19. See also R. Yitzchak Heller, <i>Minḥat Yiẓḥak, Yoreh De‘ah</i>, no. 13.</i> Rambam states that the prohibition extends only to gentiles who do not accept the divinity of Torah and specifically includes Moslems among those to whom the Torah may not be taught. However, declares Rambam, it is permitted to teach "the <i>mizvot</i> and their explanations to Christians" who accept the divinity of Torah.44<i class="footnote">See Me’iri, <i>Ḥaggigah</i> 13a, who states, “One may not transmit secrets of the Torah to non-Jews, that is, to one who serves idols, for since he denies the existence of God how may we teach him Torah? With regard to them [Scripture] states, ‘He teaches His words to Jacob…. ’ ” Me’iri appears to limit the prohibition to idolators and atheists. This distinction, as formulated by Me’iri, is not cited in any of the numerous discussions of this topic. Also of interest is the comment of Rabbenu Yechiel of Paris who states that various talmudic references to non-Jews, among which he enumerates the prohibition against teaching Torah to gentiles, denote only members of the Seven Nations, i.e., the pagan tribes indigenous to the land of Canaan. See <i>Vikuaḥ Rabbenu Yeḥi’el mi-Pariz</i>, ed. Reuben Margulies (Lwow, 1928), p. 21. However, as indicated in note 42, no halakhic inferences may be drawn from statements made in the context of a disputation.</i> Christians are described by Rambam as accepting the authenticity of the Masoretic text but as having interpreted it incorrectly. However, continues Rambam, if the correct meaning of Scripture is explained to them it may perhaps be accepted by them; even if this does not prove to be the case, no harm is done in making knowledge of Torah available to Christians since they accept the Bible as the revealed word of God.
  8. Minors
  R. Ze'ev Wolf Leiter, <i>Teshuvot Bet David</i>, no. 96, suggests that the ban against teaching Torah to non-Jews may not apply to young children. <i>Minḥat Hinnukh</i>, no. 232, states that the sole prohibition devolving upon a Jew who teaches Torah to a non-Jew is that of "Thou shalt not place a stumbling block before the blind" (Leviticus 19:14).45<i class="footnote">See above, note 5.</i> Since, however, a non-Jewish child who has as yet not reached the age of legal capacity46<i class="footnote"><i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 317, states that although a Jewish boy reaches majority at 13 years of age and a Jewish girl at 12 years of age, provided that hair has developed in the pubic region, Noachides may be culpable at whatever age their intellect becomes developed. <i>Sho’el u-Meshiv, Mahadurah Tinyana</i>, I, no. 14, states clearly that this occurs at a much younger age. [In light of the principle which establishes that there is no commandment binding upon Noachides from which Jews are exempt (<i>Sanhedrin</i> 55a and 59a) some scholars aver that mentally mature Jewish minors below the age of halakhic majority are obligated to abide by the provisions of the Seven Commandments no less than are non-Jews of similar maturity; see R. Chaim Auerbach, <i>Divrei Ḥayyim</i>, <i>Nizkei Mammon</i>, no. 11, and R. Shlomoh Zalman Auerbach, <i>Moriah</i>, Elul 5742. <i>Divrei Ḥayyim</i> asserts that although he is bound by the Seven Commandments, a Jewish minor who has attained intellectual maturity is not liable to punishment for infraction of those commandments.]</i> incurs no punishment,47<i class="footnote">See, however, R. Joseph Saul Nathanson, <i>Sho’el u-Meshiv, Mahadurah Tinyana</i>, I, no. 14, who declares that under the Noachide Code even minors are culpable.</i> the Jew who provides instruction has not placed a stumbling block before him. However, in an earlier responsum, no. 57, the same author states that the prohibition derived from the verse "He hath not done so with any nation" (Psalms 147:20) applies to the teaching of minors as well.48<i class="footnote">See also R. Isaac Liebes, <i>Teshuvot Bet Avi</i>, I, no. 96, who similarly forbids enrollment of the child of a non-Jewish mother in a Talmud Torah.</i> Moreover, contends Rabbi Leiter, a non-Jew taught Torah as a child may well review what he has studied after reaching the age of majority. The Jew, in providing instruction to a child, would thus be assisting in the latter's transgression at a later time.49<i class="footnote">See <i>Teshuvot Tashbaẓ</i>, III, no. 133; <i>Teshuvot Radbaz</i>, nos. 741 and 796; <i>Magen Avraham, Oraḥ Ḥayyim</i> 347:4; <i>Shakh</i> and <i>Dagul me-Revavah, Yoreh De‘ah</i> 151:6; and <i>Pitḥei Teshuvah, Yoreh De‘ah</i> 151:3.</i>
  Quite apart from the normative halakhic ruling, enrollment of non-Jewish children of intermarried couples in Jewish schools poses a policy decision of the highest magnitude. Rabbi Maurice Lamm, in a recently published book, <i>The Jewish Way in Love and Marriage</i> (New York: Harper and Row, 1979), discusses the implications of such a practice and quite cogently argues that, as a matter of policy, non-Jewish children should not under any circumstances be granted admission to Day Schools and <i>Yeshivot</i>.
  In a brief ruling unaccompanied by explanatory discussion, R. Moses Feinstein, <i>Iggerot Mosheh, Yoreh De'ah</i>, III, no. 77, unequivocally declares that such children should not be granted admission to <i>Yeshivot</i>. He further adds that the selfsame ruling applies to children born to a mother who has converted to Judaism under Conservative auspices. Since Conservative clergymen are disqualified from serving as members of a <i>Bet Din</i> the mother's conversion is a nullity. It then follows that her progeny are also non-Jews.
  A similar view regarding enrollment of non-Jewish children in Jewish schools is expressed by the Tzelemer Rav, the late R. Levi Yitzchak Gruenwald, in his posthumously published responsa, <i>Migdelot Merkaḥim, Yoreh De'ah</i>, no. 78.
  VI. Positive Obligation
  Non-Jews are not only bound by the prescriptions of the Noachide Code but are also duty bound to enforce that code. Rambam, Hilkhot Melakhim 9:14, defines the last of the Seven Commandments as an explicit injunction addressed to Noachides admonishing them to enforce the first six commandments and to punish violators. Jews as individuals are not required to secure compliance with the Noachide Code on the part of non-Jews. However, in the Jewish commonwealth, Jews were obliged to establish courts for this purpose in the event that Noachide residents failed to do so. Rambam, Hilkhot Melakhim 10:11, states that this obligation devolves upon the <i>Bet Din</i> rather than upon individual Jews. Nevertheless, the rationale underlying this obligation, viz., "so that the world not become corrupt" indicates that, even in the absence of technical responsibility, there is a universal and hence a Jewish interest in the enforcement of the Noachide laws.
  It has been noted earlier that a Jew is not halakhically bound to admonish a non-Jew in order to prevent the latter from transgressing.50<i class="footnote">See above, note 38. Cf., however, R. Yom Tov Lipman Heller, <i>Tosefet Yom Tov, Pirkei Avot</i> 3:14, who does posit an obligation to utilize moral persuasion in convincing non-Jews to abide by the provisions of the Noachide Code. <i>Tosefet Yom Tov</i> cites an obligation to coerce non-Jews to accept the Seven Noachide Commandments. This is apparently a reference to the ruling recorded by Rambam, Hilkhot Melakhim 10:6. That obligation, however, flows from the commandment, “They shall not dwell in your land lest they cause you to sin against me” (Exodus 23:33), which applies only to non-Jews residing in <i>Ereẓ Yisra’el</i>.</i> This does not, however, mean that Jews are absolved from all responsibilities with regard to non-Jews. The Gemara, <i>Makkot</i> 9b, declares that a non-Jew is culpable for violations of the Noachide Code even if he is ignorant of the halakhic restrictions because "he should have learned, but did not learn." The notion that the non-Jew "should have learned" certainly entails the assumption that the requisite information is available to those desiring to acquire such knowledge. Yet, it may readily be inferred from Rambam's comments, Hilkhot Melakhim 8:11, that Noachides do not possess an independent <i>mesorah</i> or tradition based upon divine revelation.51<i class="footnote">Cf., also Rambam, <i>Commentary on the Mishnah, Ḥullin</i> 100b. See also Rambam, <i>Hilkhot Ma‘aseh ha-Korbanot</i> 19:16, cited above, note 8.</i> The authoritative source of the <i>mesorah</i> upon which the Noachide Code is predicated is the revelation which occurred at Mt. Sinai. Since only Jews were privileged to participate in that event, it is readily apparent that instruction in the Noachide laws must ultimately come from Jews. Jews are the bearers of the <i>mesorah</i> not only of the 613 commandments of the Children of Israel but also of the Seven Commandments of the Sons of Noah. Obviously, then, the Jewish scholar must be under some correlative obligation requiring him to impart knowledge. Otherwise a non-Jew could not justifiably be held accountable because "he should have learned but did not learn."
  It seems to this writer that while there exists no <i>obligation</i> to volunteer information (although it may well be laudable to do so), there <i>is</i> an obligation to respond to a request for information. Jews are commanded to disseminate Torah as widely as possible among their fellow Jews, but there is no obligation to seize the initiative in teaching the Seven Commandments to Noachides. Nevertheless, when information or advice is solicited there is a definite obligation to respond. When the non-Jew takes the initiative in posing a query, the Jew must respond to the best of his ability.52<i class="footnote">For a similar distinction in a different context see <i>Teshuvot Ḥatam Sofer, Ḥoshen Mishpat</i>, no. 164.</i>
  In the context of influencing legislation, it would appear that the Jewish community is under no binding obligation aggressively to advocate legislative implementation of Halakhah even as it pertains to non-Jews. Nevertheless, Jewish scholars are not at liberty to shirk their responsibility as teachers when asked to present Jewish teaching as it relates to any legislative issue. In making such a request, the legislators, knowingly or unknowingly, are engaged in discharging the obligation placed upon them by the Noachide Code.
  Cognizance must be taken of yet another aspect of our concern. Despite the absence of a specific <i>obligation</i> to influence non-Jews to abide by the provisions of the Noachide Code, the attempt to do so is entirely legitimate. Apart from our universal concern, fear lest "the world become corrupt," as Rambam puts it, is also very much a matter of Jewish concern and self-interest. Disintegration of the moral fabric of society affects everyone. Particularly in our age we cannot insulate ourselves against the pervasive cultural forces which mold human conduct. Jews have every interest in promoting a positive moral climate.
  Accordingly, Jews should certainly not hesitate to make the teachings of Judaism as they bear upon contemporary mores more readily accessible to fellow citizens. That is the most direct means available to us for exercising a positive influence in improving the moral atmosphere in which we all live.
  The prophet Isaiah testifies that in the end of days there will be a pervasive thirst for the word of God and, ultimately, non-Jews will turn to Jews in their quest to become familiar with the Law of God: "And it shall come to pass in the end of days … And many nations shall come and say, 'Come ye, and let us go up to the mountain of the Lord, to the house of the God of Jacob and He will teach us His ways (<i>derakhav</i>) and we will walk in His paths (<i>orḥotav</i>)' " (Isaiah 2:2-3). Malbim, in his commentary on this passage, notes that elsewhere the Hebrew term <i>"derakhav,"</i> translated as "His ways," denotes major roads or highways while the term <i>"orḥotav,"</i> translated as "His paths," refers to secondary roads. Thus, according to Malbim, Isaiah speaks of an obligation incumbent upon Jews to teach all nations the "roots and principles" of Judaism and prophesies that, in the end of days, these nations will seek even greater edification and will, of their own accord, seek to discover even the byways and footpaths, i.e., the details and minutiae, of the Torah.
  See also R. Shlomoh Kluger, <i>Ha-Elef Lekha Shlomoh, Oraḥ Hayyim</i>, no. 257, who bases his opposition to Mendelssohn's translation upon the negative attitude expressed with regard to the Greek translation at the time of Ptolemy. Cf., below, note 39.
  It may be inferred that this was R. Akiva Eger's position as well since the question addressed to him, <i>Teshuvot R. Akiva Eger</i>, no. 41, concerned a non-Jew who wished to be taught "Scripture and the order of prayer" in contemplation of conversion. R. Akiva Eger's negative reply quite apparently refers to instruction in Scripture; see <i>Teshuvot Minḥat Elazar</i>, IV, no. 63.
  <i>Teshuvot Divrei Yissakhar, Yoreh De'ah</i>, no. 96, rejects a possible distinction between the Written Law and the Oral Law and cites a statement of the Gemara, <i>Sanhedrin</i> 59a, in support of his position. In questioning R. Yoḥanan's dictum prohibiting non-Jews from studying Torah the Gemara cites R. Meir's statement that a non-Jew who studies Torah is likened unto a High Priest. The Gemara replies that R. Meir's comment must be understood as referring to the study of the Seven Commandments of the Sons of Noah. Failure to resolve this difficulty by distinguishing between the Written and the Oral Law, argues <i>Divrei Yissakhar</i>, indicates that such a distinction is invalid.
  On the other hand, Rabbi Weinberg, <i>Seridei Esh</i>, II, no. 92, opines that even if the non-Jew is not intent upon actual conversion but will cherish and honor the teachings of the Torah he may, according to Me'iri, be given instruction; cf., below, note 42. See also R. Chaim Yosef David Azulai, <i>Birkei Yosef, Shiyurei Berakhah, Yoreh De'ah</i> 246:3-5; R. Elijah of Lublin, <i>Teshuvot Yad Eliyahu</i>, no. 48; R. Eleazar Horowitz, <i>Teshuvot Yad Elazar</i>, no. 76; R. Jacob Saul Alyashar, <i>Ma'aseh Ish, Yoreh De'ah</i>, no. 7; R. Meir Arak, <i>Teshuvot Imrei Yosher</i>, II, no. 130; <i>Teshuvot Divrei Malki'el</i>, VI, no. 19; <i>Teshuvot Maḥazeh Avraham</i>, I, Oraḥ Hayyim, no. 54; <i>Lev Sameaḥ, ma'arekhet mem</i>, no. 21; <i>Ma'asai la-Melekh, Hilkhot Bet ha-Beḥirah</i> 2:2, secs. 3-4; <i>Teshuvot Pri ha-Sadeh</i>, IV, no. 96; <i>Seridei Esh</i>, II, no. 91; <i>Teshuvot Maḥaneh Hayyim</i>, I, no. 7; R. Abraham Reinhold, <i>Teshuvot Minḥat Avraham</i>, no. 20; and <i>Teshuvot Minḥat Yizḥak</i>, I, no. 36, sec. 6 and III, no. 98, sec. 2. Cf., however, Rambam, <i>Teshuvot Pe'er ha-Dor</i>, no. 50, who states that one should withhold instruction from a non-Jew "until he converts."
  If the views of <i>Yad Eliyahu</i> and <i>Maḥaneh Hayyim</i> are co-joined the resultant position is that the prohibition encompasses only instances in which the non-Jew seeks general instruction, but not instances in which the Jew seeks to enlighten the non-Jew or instances in which the non-Jew poses specific questions in order to be enlightened with regard to the teachings of Judaism concerning particular matters.
  A somewhat different position is independently advanced by <i>Zekan Aharon</i>, II, no. 71. <i>Zekan Aharon</i> adopts the position that no violation of R. Yoḥanan's dictum takes place on the part of the non-Jew if Torah is transmitted by a Jew. The Jew is forbidden to teach Torah to a gentile by virtue of R. Ami's dictum, but R. Ami forbids only the teaching of "reasons and secrets"; other matters may be transmitted with impunity. This inference is, however, contradicted by R. Yoḥanan's own corollary statement declaring that a Jew who teaches a gentile has transgressed in placing a stumbling block before him. <i>Zekan Aharon</i>, in explaining R. Yoḥanan's statement, modifies his conclusion by stating that no individual has the right to alienate Torah, which is the inheritance of the community of Jacob rather than the individual's personal possession, in favor of a non-Jew; however, the <i>Bet Din</i> which acts on behalf of the entire community may authorize the instruction of a non-Jew and regularly does so with regard to candidates for conversion.
  <i>Maḥanah Hayyim</i> further resolves the problem posed in the inquiry addressed to him by stating that an applicant for conversion need be told of <i>mizvot</i> only in a general way. However, in the absence of specific information with regard to how <i>mizvot</i> are to be fulfilled (e.g., precise time of performance, precise definition of that which is forbidden, or exact quantity or measurement, etc.) the individual receiving such information has incomplete and hence inaccurate information. Such information is not to be considered "Torah" in the proper sense of the term. It then follows that only precise and complete information may not be taught to non-Jews. In a somewhat similar vein, <i>Pri ha-Sadeh</i>, II, no. 71, states that the statutory requirement for purposes of conversion is to "make known" the nature of <i>mizvot</i> to non-Jews. Imparting such information, declares <i>Pri ha-Sadeh</i>, is qualitatively different from "teaching."
  However, the thesis advanced by <i>Komez le-Minḥah</i> is difficult to sustain. It may well be cogent if applied to a situation involving ignorance of fact, as distinct from ignorance of law. A non-Jew is not culpable, for example, for eating flesh torn from a living creature if he is unaware of the fact. A Jew is not obligated to prevent him from doing so and, arguably, has not placed a stumbling block before him in presenting him with such meat. However, as noted earlier, ignorance of law does not exonerate a Noachide. Since the Noachide Code makes no distinction between willful transgression and transgression which results from ignorance of the law, it is difficult to see why the assistance of a Jew, since it is forbidden in the former case, should not likewise be forbidden in the latter. In the absence of the obligations flowing from the concept of <i>arevut</i> there may be no obligation to prevent the non-Jew from sin; however, actively causing a non-Jew to transgress is clearly forbidden. Cf., however, <i>Mishneh le-Melekh, Hilkhot Kela'im</i> 1:6; Bi'ur haGra, Yoreh De'ah 295:2; and <i>Pri Megadim, Oraḥ Hayyim</i> 443:5 and 444:6, who maintain that passive non-intervention also constitutes "placing a stumbling block before the blind." <i>Derishah, Yoreh De'ah</i> 297, disagrees and maintains that the prohibition includes only overt action but does not extend to passive nonfeasance. See also R. Ya'akov Breisch, <i>Helkat Ya'akov</i>, III, no. 136.
  <i>Tosafot, Gittin</i> 60b, cites a midrashic comment which explains that the major portion of the Torah was transmitted through the Oral Law and only a small portion thereof was recorded in the Written Law because God does not wish the Torah to be accessible to non-Jews. On the basis of this source <i>Torat Yeruḥam</i>, I, Oraḥ Hayyim, no. 2, forbids the publication of Torah works devoted to the explication of either the Oral or the Written Law on behalf of non-Jews.
  For an account of <i>Hatam Sofer</i>'s letter of approbation in support of the publication of a German translation of the Talmud prepared by Ephraim Moses Pinner and his subsequent retraction thereof see R. Naphtali Benet, <i>Imrei Shefer</i>, p. 8b; <i>Iggerot Soferim</i>, ed. R. Shimon Sofer, II, nos. 66–69; <i>Likutei Teshuvot Hatam Sofer</i> (London, 5725), <i>Helek ha-Mikhtavim</i>, no. 38; <i>Teshuvot Maharam Schick, Oraḥ Hayyim</i>, nos. 306 and 307; Rabbi Y. Y. Greenwald, <i>Ozar Neḥmad</i>, pp. 81-83; and R. Even-Sapir, <i>No'am</i>, X, 142. See also R. Judah Nachshoni, <i>Rabbenu Mosheh Sofer</i> (Jerusalem, 5741), pp. 194–196 and R. Raphael Nathan Nata Rabbinovicz, <i>Ma'amar al Hadfasat ha-Talmud</i> (Jerusalem, 5725), p. 246. One volume of the Pinner translation of the Talmud was published in Berlin in 1842, but without <i>Hatam Sofer's</i> letter of approbation. For a report of a similar attempt on the part of Rabbi Israel Salanter to have the Talmud translated into the vernacular and of his unsuccessful journey to Paris for this purpose see <i>R. Israel Lipkin-Salant</i>, pp. 27-29; <i>Students, Scholars and Saints</i>, pp. 160-161; and <i>Tenu'at ha-Mussar</i>, I, 22. Cf., <i>Teshuvot Maharya, Oraḥ Hayyim</i>, no. 2; <i>Teshuvot Arugat ha-Bosem, Oraḥ Hayyim</i>, nos. 213 and 214; and <i>Zekan Aharon</i>, II, no. 71. Regarding the translation of <i>Ein Ya'akov</i> into the vernacular see <i>Teshuvot Arugat ha-Bosem, Oraḥ Hayyim</i>, no. 214. Compilation of halakhic compendia in the vernacular is discussed by <i>Teshuvot Arugat ha-Bosem, Oraḥ Hayyim</i>, no. 213. See R. Shlomoh Kluger, <i>Ha-Elef Lekha Shlomoh, Oraḥ Hayyim</i>, no. 258, who opposed a proposed German translation of the Mishnah on the grounds that it is impossible for any translation to preserve nuances of meaning or to use language which accommodates conflicting interpretations of the original text.
  See also <i>Seridei Esh</i>, II, no. 92, who cites and refutes the opinion of R. Reuben Margulies, <i>Margaliyot ha-Yam, Sanhedrin</i> 59a, who maintains that it is forbidden to teach Torah to non-Jews only in the Hebrew language, but that there is no prohibition against such instruction in other languages.
  See also R. Ovadiah Yosef, <i>Yabi'a Omer</i>, II, <i>Yoreh De'ah</i>, no. 17, sec. 2, who maintains that the culpability of minors is a matter of dispute between Rosh and Rashi: <i>Teshuvot ha-Rosh, klal</i> 16, no. 1, states that the age of legal capacity is a matter of <i>halakhah le-Mosheh me-Sinai</i>, i.e., transmitted orally to Moses on Mt. Sinai as one of the many <i>shi'urim</i> or specifications of quantity and size with regard to precepts and transgressions, all of which were transmitted in this manner. Rambam, Hilkhot Melakhim 5:10, states that such <i>shi'urim</i> pertain only to commandments binding upon Jews but not to Noachide obligations. Thus Noachides are culpable for eating even a minute particle of flesh torn from a living animal while Jews are culpable only upon consumption of a quantity of food equal to the size of an olive. [Cf., however, Maharit Algazi, <i>Kehillat Ya'akov</i>, s.v. <i>ḥazi shi'ur</i>, who maintains that <i>Tosafot</i> disagrees with this ruling.] Rashi, <i>Avot</i> 5:21 and <i>Nazir</i> 29b, however, states that the age of religious majority is rooted upon the principle that a person is not a "man" until he reaches the age of thirteen as evidenced by the scriptural description, "And the two sons of Jacob, Simon and Levi, took each <i>man</i> his sword" (Genesis 34:25). Levi, at the time, was thirteen years old. The definition of the term "man" is a concept applicable to Noachides as well as to Jews. Rambam exempts Noachide minors from punishment, argues Rabbi Yosef, because he is in agreement with Rashi that exclusion of minors from culpability is a matter of definition rather than of <i>shi'ur</i>.
  See <i>Hatam Sofer, Yoreh De'ah</i>, no. 184, who resolves the problem with regard to the apparent contradiction in Rambam's rulings by declaring that the "minor" exempted from culpability by Rambam is not a child below the age of twelve or thirteen, which is a matter of <i>shi'ur</i>, but a minor lacking in development of reason who cannot logically be held responsible for his actions. See also R. Isaiah Even-Sapir, <i>No'am</i>, X, 137-138.
  [A difficulty presented by a statement found in <i>Hagahot Asheri, Ketubot</i> 11a, may be resolved on the basis of <i>Hatam Sofer</i>'s thesis. <i>Hagahot Asheri</i> states that a <i>ger katan</i> is permitted to marry a Jewess even though he enjoys the option of renouncing his conversion upon reaching the age of majority. The obvious difficulty is that a minor does not have the legal capacity to contract a valid marriage; see R. Moses Feinstein, <i>Iggerot Mosheh, Yoreh De'ah</i>, I, no. 162. If indeed <i>Hagahot Asheri</i> maintains that the age of majority for Noachides is not thirteen but the age of intellectual maturity a resolution of this problem presents itself. Although <i>Sho'el u-Meshiv</i>, as earlier cited, states that intellectual maturity occurs at a younger age, this is certainly not a hard and fast rule. Some individuals may achieve such maturity at a later age. Furthermore, it would appear that since the conversion becomes absolute only upon reaching the age of legal majority, a child converted while a minor may renounce his conversion when he reaches the age of majority as provided for Noachides. Thus, a child who matures later than most would be entitled to renounce his conversion after the age of thirteen. However, if he does not renounce the conversion, he will be deemed to have reached the age of legal capacity at thirteen in accordance with the law applying to Jews. <i>Hagahot Asheri</i> may then be understood as referring to precisely such a child, i.e., a <i>ger katan</i> who marries a Jewess after reaching the age of thirteen but before he has achieved intellectual maturity. Such a child may renounce the conversion upon reaching the age of maturity, but if he does not do so, any marriage contracted after the age of thirteen would be valid. Cf., <i>Helkat Yo'av, Oraḥ Hayyim</i>, no. 1. Cf., also the remarks of R. Aharon Kotler and comments of R. Shimon Moshe Diskin in the latter's <i>Mas'et ha-Melekh</i> (Jerusalem, 5736), no. 275.]
  Cf., R. Ya'akov Moshe Toledano, <i>Yam ha-Gadol</i>, no. 18, who maintains that according to all early authorities there is no distinction between Jews and Noachides with regard to the age of majority and R. Chaim Sofer, <i>Teshuvot Maḥaneh Hayyim</i>, I, no. 10, p. 21, who avers that there is no distinction between Jews and non-Jews with regard to the age at which legal capacity is reached, but that non-Jews achieve majority even in the absence of pubic hair. A similar view is advanced by R. Baruch Mordecai Lifschitz, <i>Brit Ya'akov</i>, I, no. 21.
  R. Shlomoh Drimmer, <i>Bet Shlomoh, Oraḥ Hayyim</i>, no. 67, and R. Zevi Hirsch Teumim, <i>Teshuvot Erez Ẓevi, Oraḥ Hayyim</i>, no. 32, assert that there exists no distinction between Jews and non-Jews with regard to the age of legal capacity. Cf., R. Yitzchak Chajes, <i>Sedei Yizḥak</i>, no. 9, who, in the course of a lengthy discussion, reaches the same conclusion with regard to the age of majority of a slave. See also R. Benjamin Adler, <i>Halakhot ve-Halikhot Bar Mizvah</i> (Jerusalem, 5734), p. 59.
  
  Chapter XVII Capital Punishment in the Noachide Code
  
  <i>Know ye that capital verdicts are not comparable to monetary judgments. In monetary matters a person can return the money and find atonement; in capital cases the blood [of the executed criminal] and the blood of his progeny until the end of time hang in balance</i>.
  SANHEDRIN 37a
  During recent years reintroduction of capital punishment has been a matter of debate in the United States. In particular, this question loomed prominently as a major political issue in the 1978 New York State gubernatorial campaign. Statements and editorials which appeared in certain Anglo-Jewish newspapers claim that Judaism not only sanctions capital punishment but that its elimination constitutes a grave breach of divine law. Since the purported teachings of Judaism have been introduced into this debate it is certainly proper that the provisions of Jewish law bearing upon this matter be examined and analyzed with care.
  An assessment of the legitimacy of capital punishment as administered by Noachide courts requires the resolution of a number of questions: 1) Has statutory capital punishment as imposed by Noachide courts for infractions of the Noachide Code lapsed with the destruction of the Temple as it has lapsed in punishment of violations of the Sinaitic Code by Jewish courts? 2) Are Noachide courts endowed with judicial authority to administer capital punishment on the basis of circumstantial evidence? 3) Do the king and his courts enjoy the power to administer capital punishment on the basis of circumstantial evidence in conjunction with their extra-judicial authority to maintain a just society? 4) Is the power to impose "the king's justice" limited to Jewish monarchs or does it extend to non-Jewish kings as well?
  It is logically possible to justify capital punishment either on the basis of direct statutory authority as provided by the Noachide Code, if such authority survives subsequent to the destruction of the Temple, or on the basis of administration of "the king's justice" if non-Jewish governments enjoy such prerogatives. Similarly, admissibility of circumstantial evidence may conceivably be justified either by direct provision of the Noachide Code or as a legitimate exercise of the monarchical prerogative. Whether or not the rules of evidence governing "the king's justice" provide for admissibility of circumstantial evidence remains to be demonstrated.
  I. Capital Punishment in Jewish Courts
  Even the staunchest advocates of capital punishment freely concede that Jewish courts, i.e., present-day <i>Batei Din</i>, or even the Sanhedrin, were it possible to reestablish that institution, are not obligated to impose capital punishment nor do they have discretionary power to do so as a matter of law. It is quite evident that even during the period of the Second Common-wealth instances of execution were few and far between. The Mishnah, <i>Makkot</i> 7a, declares that a court which imposes the death penalty once in seven years is "destructive," i.e., unduly punitive in nature. R. Eleazar ben Azariah applies this epithet to a court which imposes the death penalty but once in seventy years. The laws of evidence and the mode of examination to which witnesses were subjected made it difficult to secure a conviction in the vast majority of cases. The court was given discretion to subject witnesses to particularly rigorous examination with regard to the most trivial details of matters irrelevant to the substance of their testimony. The witnesses were separated from one another and each was questioned in detail. Given the faulty nature of human memory it is not at all difficult to evoke inconsistencies and discrepancies in the testimony of various witnesses. Contradictory statements by witnesses even with regard to such ancillary matters as the color of the garment worn by the accused or the number of buttons on a cloak constituted sufficient reason for exclusion of their testimony. R. Tarfon and R. Akiva volunteered the statement, "If we had been members of the Sanhedrin no man would have ever been put to death." Giving examples, they indicated that they would have demanded testimony so specific as to be unobtainable. R. Shimon ben Gamaliel in stating his opposition to such a policy, predicates his view upon the fear that were capital punishment to be abolished bloodshed might become rampant.
  Moreover, the Gemara, <i>Sanhedrin</i> 41a, reports that some forty years before the destruction of the Temple and the concomitant loss of judicial autonomy members of the Great Sanhedrin declined to convene within the precincts of the Temple because they no longer wished lower courts to sit in capital cases. Jewish law stipulates that capital punishment may be imposed by local <i>sanhedrei ketanah</i> composed of twenty-three judges only when the seventy-one member Great Sanhedrin meets within the confines of the Temple Mount. Taking notice of the increasing incidence of homicide, the Sanhedrin recognized that capital punishment imposed by the courts had lost its deterrent force and under such circumstances the Sanhedrin was unwilling to continue to impose this harsh penalty. It is clear that, among Jews, capital punishment was imposed only rarely and with the greatest of reluctance.
  With the destruction of the Temple, the statutory death penalty lapsed entirely. In establishing this rule the Gemara, <i>Sanhedrin</i> 52b, cites the biblical passage, "And you shall arise and go up to the place which the Lord your God shall choose. And you shall come unto the priests, the Levites and the judges who shall be in those days …" (Deuteronomy 17:8-9). Judicial authority was vested in the courts, not in the priests and Levites. Reference to priests and Levites in this context is therefore incongruous. The Gemara declares that the juxtaposition of the terms "priests and Levites" with "judges" serves to teach that judges may impose the death penalty only during such periods as the priest performs his priestly functions in conjunction with the sacrificial rituals. The concluding phrase, "and go up to the place which the Lord your God shall choose," serves to establish a second condition, viz., that such penalty may be imposed by the courts only when the Great Sanhedrin sits in "the place which the Lord your God shall choose," i.e., within the precincts of the Temple.1<i class="footnote">Citing these considerations, Rabbi Isaac ha-Levi Herzog, <i>Yavneh</i>, Vol. III, no. 1 (Nisan 5709), p. 10, expressed opposition to introduction of capital punishment in the State of Israel.</i> Rambam, <i>Hilkhot Sanhedrin</i> 14:11, codifies both requirements in ruling that the death sentence may not be imposed in the absence of either of these two conditions.2<i class="footnote">Another impediment to imposition of capital punishment is a lack of qualified judges. In order to sit in judgment in capital cases, as well as in some areas of jurisprudence involving imposition of fines, the judges must be recipients of <i>semikhah</i> or ordination conferred upon them for this purpose. <i>Semikhah</i> was transmitted by the ordainor to the ordainee in an unbroken line of succession having its origin in the appointment by Moses of the seventy elders; see Numbers 11:16-17, 24-25 and Rambam, <i>Hilkhot Sanhedrin</i> 4:1. This chain of transmission was interrupted in the middle of the fourth century as a result of persecution; see Ramban in his gloss to Rambam’s <i>Sefer ha-Miẓvot, miẓvot aseh</i>, no. 153. An attempt to restore the institution of <i>semikhah</i> was made in Safed in 1538 by R. Jacob Berab. This scholar predicated his action upon a ruling of Rambam, <i>Hilkhot Sanhedrin</i> 4:11, to the effect that all the sages residing in <i>Ereẓ Yisra’el</i> even though they themselves lack <i>semikhah</i>, may nevertheless collectively confer ordination and any person so ordained is thereupon privileged to ordain others. This action was bitterly opposed by R. Levi ben Jacob ibn Habib, who, at the time, was the foremost scholar of Jerusalem. The latter scholar composed a treatise entitled <i>Kuntres ha-Semikhah</i> (Venice, 1565) detailing the reasons for his opposition. As a result no further candidates were ordained and the institution of <i>semikhah</i> was allowed to lapse. For a discussion of this controversy see Jacob Katz, “The Ordination Controversy between R. Jacob Berab and R. Levi b. Habib,” <i>Ẓion</i>, XVI (1951), 28-45. A comprehensive list of articles written in recent years dealing with the question of <i>semikhah</i> in conjunction with the issue of reinstitution of the Sanhedrin appears in Nahum Rakover’s <i>Oẓar Mishpat</i> (Jerusalem, 1975), pp. 161-163.</i>
  II. Capital Punishment in the Noachide Code
  The obligations and powers of non-Jewish courts are markedly different. Gentiles are not bound by the 613 commandments revealed to Jews at Sinai but are obligated to obey the "Seven Commandments of the Sons of Noah." The Noachide Code is primarily restrictive rather than prescriptive in nature and bans reprehensible activities such as murder, theft, sexual immorality, etc. The last in this series of commandments is known as "<i>dinin</i>." The specific nature of this precept is the subject of disagreement among early rabbinic authorities. Ramban, in his commentary on the Bible, Genesis 34:13, understands this commandment as a general obligation with regard to the establishment of laws and regulations essential to the maintenance of a social order, e.g., laws governing commerce and interpersonal behavior, laws banning theft and fraud, laws regulating payment of wages, bailment, etc.3<i class="footnote"><i>Teshuvot Rema</i>, no. 10 and <i>Teshuvot Ḥatam Sofer</i>, VI, no. 14, maintain that in these areas Jewish law in all its details is incorporated in the Noachide Code by virtue of the commandment concerning <i>dinin; Ha‘amek She’elah, She’ilta</i> 2:3, asserts that while non-Jews are commanded to establish a system of jurisprudence, the detailed regulations of such a system are left to their discretion. <i>Even he-Azel, Hilkhot Malveh ve-Loveh</i> 27:1 appears to accept the latter view.</i> Rambam understands the substance of this commandment to be significantly different. Rambam, Hilkhot Melakhim 9:14, formulates this obligation as follows:
  In what way are they commanded with regard to <i>dinin</i>? They are obligated to seat judges in every single district to render judgment with regard to these six commandments and to admonish the populace. A Noachide who transgresses one of these seven commandments is to be put to death by the sword. For this reason all the inhabitants of Shechem became liable to be put to death, for Shechem committed an act of robbery and they saw and knew and did not impose judgment upon him …4<i class="footnote">Ramban, in arguing against Rambam’s position, cites a statement in the Palestinian Talmud which declares, “With respect to Jewish lawsuits [if after hearing both parties] you know perfectly well what the decision should be, you are not permitted to withdraw from the case without rendering a decision.… But with regard to [Noachide] lawsuits even though you know the law perfectly well you may withdraw from it.” The implication is that a Noachide is not obligated to pass judgment upon his fellow, contrary to Rambam’s position. This statement is not found in our editions of the Palestinian Talmud (see <i>Encyclopedia Talmudit</i>, III, 355, note 256) and presumably was not present in Rambam’s copy. Nevertheless, R. Isaac Liebes, <i>No‘am</i>, XXI (5739), 124, subsequently republished in his <i>Teshuvot Bet Avi</i>, III, no. 161, sec. 11, attempts to reconcile Rambam’s position with this statement. Rabbi Liebes argues that appointment of judges and execution of punishment are communal, rather than personal, obligations even for Noachides. Thus, no individual Noachide is obliged to serve as a judge in any specific case even if he is fully competent and no Noachide is obliged to accept designation to serve as a judge even if he is selected for this office by the community. Only when the community fails to appoint judges are the individual members of the community culpable for not having established a judiciary.</i>
  Thus, according to Rambam, not only are non-Jews obliged to impose capital punishment for violation of the Noachide Code, but failure to do so is itself a capital infraction of that Code. Since the talmudic texts and discussions which speak of the lapse of capital punishment subsequent to the destruction of the Temple refer only to the obligations of a Jewish <i>Bet Din</i> as governed by the Sinaitic Code there is no immediate reason to assume that the obligations of Noachides with regard to imposition of capital punishment are in any way diminished in our day.4a<i class="footnote">See <i>Teshuvot ha-Baḥ</i>, no. 111, who explicitly affirms that capital punishment may be imposed in our day by non-Jews for violation of the Noachide Code; see also <i>Teshuvot Ḥakham Ẓevi</i>, no. 84.</i> Certainly, no statement to that effect appears in any of the Codes or in the writings of any early authority. Such a suggestion does, however, appear in an early twentieth-century commentary on the <i>Mishneh Torah, Ẓofnat Pa'aneaḥ</i>, authored by the renowned R. Joseph Rosen of Dvinsk.
  Jewish law requires that Canaanite slaves be converted to Judaism and prohibits Jews from owning slaves who decline to do so. Rambam, Hilkhot Milah 1:6, codifies the ruling which prohibits the retention for longer than a period of twelve months of a Canaanite slave who refuses to undergo conversion through circumcision. However, Rambam further rules that, <i>prior</i> to his sale to a Jewish master, the slave may stipulate that he will accept only the seven Noachide commandments and under such circumstances the slave may be retained by his Jewish master. Rambam concludes with the statement, "However if [the slave] does not accept the Seven Commandments which the Sons of Noah were commanded he is to be put to death immediately." In a gloss appended to this ruling Rabad tersely comments, "He is to be sold immediately; it is not for us now to kill any person."
  <i>Kesef Mishneh</i> explains Rabad's position by stating that the ruling here codified by Rambam is identical with that included by him in Hilkhot Melakhim 8:10 to the effect that all gentile inhabitants of the Land of Israel must accept the commandments of the Noachide Code or face death. <i>Kesef Mishneh</i> further states that Rambam's ruling pertaining to the execution of Noachides who fail to accept the obligations imposed upon them by the Noachide Code is enforceable only when gentiles are subject to Jewish jurisdiction. Hence, even for Rambam, this provision is essentially theoretical and cannot be implemented in practice. It is precisely the latter point which Rabad underscores in his gloss. Understood in this manner, there exists no disagreement between Rambam and Rabad with regard to this salient point. Rambam, according to <i>Kesef Mishneh</i>, would agree that, in practice, the Canaanite slave who refuses to accept the Seven Commandments of the Sons of Noah cannot be executed.
  <i>Ẓofnat Pa'aneaḥ</i> does, however, posit a dispute between Rambam and Rabad and states, "…they disagree with regard to whether now, in our day, when we have no Sanhedrin and cannot execute capital punishment, the law is also the same with regard to Noachides," i.e., they disagree with regard to whether Noachides may be executed subsequent to the abolition of the Sanhedrin. According to <i>Ẓofnat Pa'aneaḥ</i>'s understanding of Rabad, it is due to statutory restriction rather than to lack of judicial jurisdiction that the death penalty cannot be imposed. Even according to this analysis, which is hardly indisputable, there is some ambiguity with regard to whether <i>Ẓofnat Pa'aneaḥ</i> means to say that it is only Jewish courts which, according to Rabad, cannot impose the death penalty upon gentiles, or whether gentiles themselves are also precluded from imposing capital punishment. Granting <i>Ẓofnat Pa'aneaḥ</i>'s basic interpretation of Rabad's position, the former would appear to be the more logical of the two possibilities since the talmudic exegesis which serves to debar capital punishment in the absence of ongoing performance of the sacrificial rituals is presented in the context of delineation of regulations governing penalties imposed by Jewish courts. Any ambiguity which exists is, however, limited to <i>Ẓofnat Pa'aneaḥ</i>'s understanding of Rabad. According to either interpretation of <i>Ẓofnat Pa'aneaḥ</i>'s comments, Rambam's position is that capital punishment is mandated and must be imposed for transgressions of the Noachide Code even "in our day."
  III. Rules of Evidence in the Noachide Code
  Of even more significance insofar as actual execution of capital punishment is concerned are the rules of evidence governing criminal proceedings under Noachide law. Jewish courts require testimony of at least two credible eye-witnesses for imposition of either corporal or capital punishment. The Bible expressly declares, "At the mouth of two witnesses, or three witnesses, shall he who is worthy of death be put to death" (Deut. 17:6). The testimony of a single witness and, <i>a fortiori</i>, circumstantial evidence, is not admissible.5<i class="footnote">The testimony of witnesses who have actually seen the act may be dispensed with only if culpability can be inferred with absolute certainty from the facts to which eyewitness testimony is presented. For example, <i>Shevu‘ot</i> 46b, states that liability for battery may be established even if witnesses have not observed the act itself provided that the evidence incontrovertibly established (a) that the wound could not possibly be accidental or self-inflicted, e.g., a bite on the back or on the elbow joint; and (b) that no other person was present and hence the defendant must have committed the act. <i>Tosafot, Shevu‘ot</i> 34a, asserts that such evidence may be admitted in capital cases as well.</i> Rambam, <i>Sefer ha-Mizvot, mizvot lo ta'aseh</i>, no. 290, basing himself upon <i>Mekhilta</i> 20:211, regards the verse "the guiltless and righteous you shall not kill" (Exodus 23:7) as an admonition addressed to the <i>Bet Din</i> directing its members not to execute judgment when it is at all possible that the accused is innocent, i.e., when the evidence is circumstantial in nature.
  Under Noachide law, as recorded by Rambam, Hilkhot Melakhim 9:14, the testimony of a single eyewitness is sufficient for conviction and execution of the death penalty. This provision of the Noachide Code is derived by the Gemara, <i>Sanhedrin</i> 57b, from the phraseology employed in Genesis 9:5 which establishes the culpability of Noachides for violations of the Seven Commandments. However, even before Noachide courts, just as in proceedings before Jewish courts, only uncontradicted testimony is acceptable as a basis for punishment, as is demonstrated by the nineteenth-century scholar R. Joseph Babad, <i>Minḥat Hinnukh</i>, no. 26.
  A confession of guilt is not admissible as evidence before a Jewish court. Whether or not a confession is admissible and constitutes sufficient grounds for conviction in Noachide courts is a matter of considerable dispute. The thirteenth-century authority, R. Aaron ha-Levi of Barcelona, <i>Sefer ha-Hinnukh</i>, no. 26, rules that a confession of guilt is sufficient for conviction under Noachide law. There is, however, no reference whatsoever to acceptance of a confession of guilt by a Noachide court either in the Talmud or in Rambam's <i>Mishneh Torah</i>.6<i class="footnote">Cf., the interesting comments of R. Yechiel Ya‘akov Weinberg, <i>Seridei Esh</i>, II, no. 104, regarding the possible positions of Rambam and Radbaz.</i> Rashi, in his commentary to II Samuel 1:16, explains that the Amalekite lad who reported that he had killed King Saul was summarily executed because he stood convicted "by his own mouth." Assuming that the term "<i>ger</i>" used in describing the Amalekite lad is, in this instance, to be translated as "stranger" rather than as "proselyte,"7<i class="footnote">See the commentaries of Ralbag and Malbim on II Samuel 1:16; see also <i>Torah Temimah</i>, Genesis 9:5. Cf., Rambam, <i>Hilkhot Sanhedrin</i> 18:6 who expressly refers to the lad as a proselyte. See also the interesting comments of R. Shimon Moshe Diskin, <i>Mas’et ha-Melekh al ha-Rambam</i> (Jerusalem, 5736), no. 273 and idem, <i>Ohel Yehoshu‘a al ha-Torah</i> (Jerusalem, 5738), p. 61, who suggests that the term <i>ger</i> denotes a <i>ger toshav</i>. Citing R. Yitzchak Ze’ev Soloveitchik, <i>Ḥiddushei ha-Riz al ha-Rambam</i>, p. 164, who maintains that a <i>ger toshav</i> who subsequently renounces his acceptance of the Seven Commandments reverts to his former status, Rabbi Diskin asserts that the Amalekite’s declaration that he had slain Saul constituted such a renunciation and hence he reverted to the status of an Amalekite and was put to death on that account.</i> Rashi's comment is in agreement with the position of <i>Sefer ha-Hinnukh. Torah Temimah</i>, Genesis 9:5, finds a source for this position in the Palestinian Talmud, <i>Kiddushin</i> 1:1, but indicates that the meaning of the text is not entirely clear. In his opinion, it is this textual ambiguity which accounts for the conflicting views with regard to the acceptance of a confession by Noachide courts.
  The very existence of a conflict with regard to acceptance of a confession serves to underscore the fact that other forms of evidence are not sufficient to establish guilt even under the more relaxed laws of evidence which govern criminal proceedings in Noachide courts. Circumstantial evidence is clearly not of sufficient weight to compel gentile courts to impose the death penalty by virtue of the Noachide obligation with regard to fulfillment of the <i>mizvah</i> of <i>dinin</i>. In fact, on the basis of the sources cited thus far, it would appear that Noachide courts have no right to impose the death penalty on the strength of circumstantial evidence. It should be noted that fingerprints, forensic evidence and the like must be relegated to the category of circumstantial evidence.8<i class="footnote">See R. Shlomoh Fisher’s discussion of the admissibility of fingerprint evidence. <i>No‘am</i>, II (5719), 222-240. Both fingerprint evidence and blood test findings are discussed by R. Chaim David Regensburg, <i>Mishmeret Ḥayyim</i> (Jerusalem, 5726), no. 37. Blood test findings are discussed by R. Joshua Aaronberg, <i>Dvar Yehoshu‘a</i>, III, <i>Even ha-Ezer</i>, no. 5. Polygraph evidence is discussed by R. Joshua Baumol, <i>Teshuvot Emek Halakhah</i>, II, no. 14.</i> Such evidence is inadmissible before Jewish courts which require the testimony of two eyewitnesses and would appear to be equally inadmissible before Noachide courts where a single eyewitness is required for imposition of the death penalty.
  IV. Circumstantial Evidence in the Noachide Code
  In formulating a Jewish response to the current debate concerning capital punishment one highly significant point must be recognized. Even when state laws provide for the death penalty, e.g., in instances of first degree homicide, this penalty is, in practice, seldom imposed on the basis of eyewitness testimony or even upon the defendant's entry of a guilty plea. It is indeed true that a guilty plea does not foreclose the possibility of a death sentence. There have been numerous instances in which the courts have imposed the death penalty subsequent to a confession of guilt. However, such sentences, particularly in recent judicial practice, are relatively rare in instances in which a plea of guilt has been entered. Hence, a defendant who was mentally competent when he committed an act of homicide and is confronted with the unchallenged testimony of an unimpeachable eyewitness is likely to plead guilty. Of course, even when the act of homicide is not denied the question of first degree culpability may well become a trial issue. On balance, however, the death penalty is only infrequently imposed in situations in which, according to Rambam, capital punishment is required under the Noachide Code.
  The net effect of death penalty statutes is to establish a punitive system in which this penalty is more likely to be imposed upon defendants who deny guilt but are nevertheless convicted despite contradictory testimony or, as is more frequently the case, upon defendants who are convicted on the basis of evidence which Halakhah regards as circumstantial in nature. Noachides are clearly under no obligation to impose the death penalty under such circumstances. Whether or not Noachide courts enjoy discretionary authority to impose capital punishment in the absence of eyewitness testimony requires further clarification.
  It is indeed the case that, at least under certain circumstances, Jewish courts enjoy discretionary power to impose the death penalty even in the absence of the testimony of two eyewitnesses. Jewish law provides for what, in effect, constitutes two separate systems of justice and two parallel judiciaries. The <i>Bet Din</i> is obligated to enforce the law and to mete out punishment to transgressors as provided by Scripture. These responsibilities with regard to punishment of malefactors are mandatory and constitute the fulfillment of a <i>mizvah</i>. Indeed, for Rambam, imposition of each of the four modes of execution is a separate and distinct <i>mizvah</i> and, collectively, imposition of the various death penalties constitutes four of the 613 commandments. Yet, as noted earlier, the stringent nature of the laws of evidence makes it extremely difficult to obtain a conviction before a <i>Bet Din</i>. Such a situation would certainly tend to encourage criminal activity and might well result in a total breakdown of law and order. The prerogatives bestowed upon the king serve to rectify such a situation. The king is empowered to impose extra-judicial punishment as he sees fit in order to preserve the social order. The responsibilities of the monarch in the Jewish commonwealth are twofold in nature: 1) to lead the people in war—a vestige of this traditional function of the ruler remains even in contemporary non-monarchical societies such as the United States in which the chief of state is titular commander-in-chief of the armed forces; and 2) to sit in judgment, i.e., to administer what may be termed "the king's justice."9<i class="footnote">The terms used by Rambam, <i>Hilkhot Roẓeaḥ</i> 2:4 and <i>Hilkhot Sanhedrin</i> 8:6 are <i>“din ha-malkhut”</i> and <i>“din malkhut,”</i> literally “law of the monarchy” or “the king’s law.” In context, however, the reference is not to statutory law but to ad hoc punishment, a connotation more accurately reflected by the term “the king’s justice.”</i> These duties are elucidated in I Samuel 8:20: "We also shall be like all the nations; our king shall judge us, and go out before us and fight our wars." Rambam, Hilkhot Melakhim 4:10, declares, "… a king is not appointed in the first instance other than for the purpose of executing judgment and [waging] wars."
  The monarch is empowered to punish malefactors in a manner more severe than is provided by biblical law.10<i class="footnote"><i>Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim</i>, no. 208, states that this authority is derived from Leviticus 27:29. Ramban understands this verse as conferring upon the community the power of declaring a <i>ḥerem</i> and prescribes the death penalty for its violation. <i>Ḥatam Sofer</i> suggests that the power is vested in the monarch by virtue of the acceptance of his authority and the concomitant duty of obedience owed him by the populace. Cf., Me’iri cited in <i>Shitah Mekubeẓet, Baba Kamma</i> 84b, and R. Saul Israeli, <i>Ha-Torah ve-ha-Medinah</i>, II (Iyar 5710), 77, 85-88.</i> Thus, he may, for example, decree the execution of an individual who has taken the life of another even though the culprit's act does not, for various reasons, constitute capital homicide under biblical law.11<i class="footnote">It should be noted that Rambam, Hilkhot Melakhim 3:8 and 3:10, in describing the royal prerogatives, speaks only of the crimes of <i>lèse majesté</i> and homicide. In <i>Hilkhot Roẓeaḥ</i> 2:4, Rambam speaks of “murderers and the like.” <i>Avnei Nezer, Yoreh De‘ah</i>, II, no. 312 and R. Saul Israeli, <i>Ha-Torah ve-ha-Medinah</i>, II, 81, opine that the king’s jurisdiction is limited to these crimes. R. Benjamin Rabinowitz-Teumim, <i>Ha-Torah ve-ha-Medinah</i>, IV (Elul 5712), 74, understands Rambam in this manner as well. See also <i>Or Sameaḥ, Hilkhot Melakhim</i> 3:10. This interpretation of Rambam is difficult to sustain in light of Rambam’s own statement, <i>Hilkhot Sanhedrin</i> 18:6, to the effect that Achan—who was not guilty of homicide—was executed by virtue of application of the “king’s justice.” However, Ritva, cited in <i>Shitah Mekubeẓet, Baba Meẓi‘a</i>, 83b, explains that R. Elazar ben Shimon’s action in turning over thieves to government authorities, although sharply censured by R. Joshua ben Karchah, was deemed appropriate in R. Eleazar’s opinion because those individuals were lawfully liable to punishment by virtue of exercise of the royal prerogative. Ritva apparently maintains that the king’s authority extends to punishment of theft as well. Ran, <i>Sanhedrin</i> 46a, offers a similar explanation and is obviously in agreement with Ritva. Rashba, in a responsum published by D. Kaufmann, <i>The Jewish Quarterly Review</i>, o.s. VIII (1896), 236, explains R. Eleazar ben Shimon’s action in the same manner and further states that R. Joshua ben Karchah does not forbid such execution but states only that as an act of piety one should refrain from delivering the wrong-doers into the hands of government officials. It is presumably this responsum which is alluded to by <i>Bet Yosef, Ḥoshen Mishpat</i> 388. <i>Bet Yosef</i>’s citation appears only in early editions of <i>Tur Shulḥan Arukh</i> and was deleted by the censor in later editions; see Shmuel Shilo, <i>Dina de-Malkhuta Dina</i>, p. 67, note 28. <i>Or Sameaḥ, Hilkhot Melakhim</i> 3:10, also understands <i>Baba Meẓi‘a</i> 83b in this manner. R. Benjamin Rabinowitz-Teumim, <i>Ha-Torah ve-ha-Medinah</i>, IV, 80, adds that R. Eleazar ben Shimon acted in an official capacity and even according to his view, as opposed to that of R. Joshua ben Karchah, only a person specifically delegated by the non-Jewish king to perform such functions may deliver a criminal into the hands of civil authorities. See also Malbim’s commentary on II Samuel 12:5 in which that commentator assumes as a matter of course that the king is empowered to impose the death penalty for theft.</i> Moreover, the king, in administering justice, is not bound by the strict laws of evidence.12<i class="footnote">The <i>Bet Din</i> may also impose extraordinary punishment and ignore usual judicial procedure, but only as an emergency measure; see Rambam, <i>Hilkhot Sanhedrin</i> 18:6 and 24:4 as well as <i>Hilkhot Roẓeaḥ</i> 2:4; cf., Rambam, <i>Hilkhot Mamrim</i> 2:4.</i> As formulated by Rambam, Hilkhot Melakhim 3:10.
  One who murders without clear proof, or without warning, even if [in the presence of] a single witness, or an enemy who kills unintentionally, the king has authority to execute him and to perfect the world in accordance with what the hour requires.13<i class="footnote">See also Rambam, <i>Hilkhot Roẓeaḥ</i> 2:4.</i>
  Thus, the king is empowered to establish a system of justice not limited by the rigid rules of evidence which severely circumscribe the power of the <i>Bet Din</i> to punish evildoers.14<i class="footnote">See R. Zevi Hirsch Chajes, <i>Torat Nevi’im</i>, ch. 7 (published in <i>Kol Sifrei Maharaẓ Ḥayes</i>, I, 49), who advances the view that such persons must be tried before a <i>Bet Din</i>, but that the <i>Bet Din</i> is empowered to act in accordance with the “statutes of the kingdom which are recorded from the time of Joshua and Samuel” rather than in conformity with established judicial procedure. Although not cited by R. Chajes, this position seems to be predicated upon the view expressed by <i>Tosafot, Sanhedrin</i> 36a, <i>Megillah</i> 14b and <i>Shabbat</i> 56a, that judgment for <i>lèse majesté</i> must be imposed by the Sanhedrin rather than by the king himself. This view is rejected by <i>Ḥiddushei ha-Ran, Sanhedrin</i> 36a, and <i>Turei Even, Megillah</i> 14b. Rambam’s position as expressed in Hilkhot Melakhim 3:8 seems to be in accordance with the position of Ran. See also <i>Shitah Mekubeẓet, Baba Meẓi‘a</i> 83b, and <i>Teshuvot ha-Rashba</i> (cited by <i>Bet Yosef, Ḥoshen Mishpat</i> 388) who speak of the punishment as being executed by “the king’s agent.”</i> Rambam, <i>Hilkhot Sanhedrin</i> 18:6, states explicitly that the monarch is empowered to impose a death sentence upon the confession of the defendant.15<i class="footnote"><i>Derashot ha-Ran</i>, no. 11, states that these powers are vested not only in a <i>melekh</i>, i.e., a king who has been crowned in conformity with the stipulations of Jewish law, but also in a <i>shofet</i>, i.e., a “judge” or ruler who exercises <i>de facto</i> sovereignty. Me’iri, <i>Sanhedrin</i> 49b, apparently maintains that a community which enjoys judicial autonomy may vest these powers in a person or body of its choosing even if the community lacks full political autonomy. See also Ramah, <i>Sanhedrin</i> 49b. Cf., Ramban, addenda to Rambam’s <i>Sefer ha-Miẓvot, miẓvot aseh</i>, no. 4. R. Benjamin Rabinowitz-Teumim, <i>Ha-Torah ve-ha-Medinah</i>, IV, 77-79, asserts that Rambam disagrees and maintains that, in a Jewish commonwealth, such authority is vested only in the monarch. A contrary view is expressed by R. Saul Israeli, <i>Ha-Torah ve-ha-Medinah</i>, I, 76 and IV, 82-86.</i> However, whether or not the king might act in a like manner upon circumstantial evidence is less clear.16<i class="footnote">The term “without clear proof” employed by Rambam in formulating this ruling should not necessarily be understood as referring to circumstantial evidence. The term may connote testimony of witnesses who had observed the act separately rather than jointly (<i>edut meyuḥedet</i>) or (perhaps) testimony which cannot be accepted because of nonmaterial discrepancies in their testimony. See <i>Kesef Mishneh, Hilkhot Roẓeaḥ</i> 6:5, and <i>Or Sameaḥ, Hilkhot Melakhim</i> 3:10.</i>
  The rationale underlying the king's authority to suspend laws of evidence is not readily apparent. It is understandable that the king be empowered to establish laws for the benefit of society and even to mete out punishment of greater severity than prescribed by biblical law. Those powers constitute the essence of the royal prerogative and are comparable to the obligation of gentiles to provide for a just and well-ordered society which constitutes the essence of the commandment of <i>dinin</i> as enunciated by Rambam. But relaxation of laws of evidence is another matter entirely. In requiring the testimony of two eyewitnesses the Torah in effect declares that a single witness is unreliable; his testimony does not establish judicial proof that an infraction of law has in fact occurred. The king may define additional crimes and establish more severe punishments, but by what power may he accept evidence that an infraction has occurred if the Torah explicitly declares such evidence to be inconclusive in establishing factual knowledge?
  R. Meir Simchah ha-Kohen of Dvinsk, an early twentieth-century authority, in his commentary on the <i>Mishneh Torah, Or Sameaḥ, Hilkhot Melakhim</i> 3:10, resolves this difficulty by advancing the thesis that the royal prerogatives constitute simply the extension and application of provisions of the Noachide Code to Jews. According to this view, the Noachide Code is superceded by the Sinaitic Code insofar as mandatory application is concerned but, nevertheless, retains residual legitimacy even with regard to Jews to the extent that the king has discretionary authority to act on the rules of evidence by which Noachide courts are governed. According to this thesis, the Torah, in requiring two witnesses, does not declare the testimony of a single witness to be untrustworthy since it continues to admit such testimony under the Noachide Code—but simply provides that the <i>Bet Din</i> must be governed by more stringent rules of evidence. However, since a single witness is sufficient for conviction in a Noachide court, the king may accept such testimony as well.17<i class="footnote">Acceptance of <i>Or Sameaḥ</i>’s thesis should logically lead to the conclusion that a confession of guilt must be accepted and acted upon by Noachide courts. Since, according to <i>Or Sameaḥ</i>, only evidence admissible in Noachide courts may be acted upon by the king, the fact that the king may administer punishment on the basis of a confession, as recorded by Rambam, <i>Hilkhot Sanhedrin</i> 18:6, must signify that such evidence is sufficient for conviction under Noachide law.</i>
  However, acceptance of circumstantial evidence remains an open question. Accepting the thesis of <i>Or Sameaḥ</i>, it would follow that circumstantial evidence is either admissible both by a Noachide court and by the king's court or by neither. <i>Or Sameaḥ</i> makes one further point which has a direct bearing upon this question. Rambam, Hilkhot Rozeaḥ 6:6, rules that a blood-avenger may act upon the testimony of a single witness. This ruling is sharply contested by Rabad and, indeed, Rabad's objection led <i>Kesef Mishneh</i> to a reinterpretation of Rambam's position. <i>Or Sameaḥ</i> understands Rambam in a literal way and justifies Rambam's position in permitting a blood-avenger to act on the testimony of a single witness.18<i class="footnote">The correctness of <i>Or Sameaḥ</i>’s understanding of Rambam in contradistinction to that of <i>Kesef Mishneh</i> is manifest from the statement of Rambam himself in his <i>Guide of the Perplexed</i>, Book III, chap. 40, as is indeed noted by <i>Or Sameaḥ, Hilkhot Roẓeaḥ</i> 6:5; see below, note 33.</i> He explains that the blood-avenger—like the king—is empowered to act in a summary manner because such action is necessary in order to preserve the social order. The function of the blood-avenger is similar to that of the monarch; in effect, declares <i>Or Sameaḥ</i>, both are empowered to implement provisions of the Noachide Code. Insofar as the blood-avenger is concerned, it would appear that both Rambam and Rabad agree that he may not act on the basis of circumstantial evidence; Rabad rules that the blood-avenger may act only upon the testimony of two witnesses. Rambam, in relaxing this requirement, speaks of the sufficiency of a single witness, but makes no mention of circumstantial evidence. Since the blood-avenger, the king, and the Noachide courts must abide by the identical standard of evidence it would follow, according to <i>Or Sameaḥ</i>, that circumstantial evidence may not be accepted either by the king's court or by a Noachide court.
  V. Noachide Courts and the King's Justice
  Quite apart from the thesis advanced by <i>Or Sameaḥ</i>, if it can be demonstrated that the king is empowered to accept circumstantial evidence in meting out punishment, a strong argument could be made in support of the position that Noachide courts may legitimately accept such testimony as well. Noachide courts may accept such evidence, it may be argued, not because in doing so they would be executing the provisions of the Noachide Code, but rather because, as the creatures of the state, they are also empowered to administer "the king's justice." It may well be argued that gentile governing bodies enjoy prerogatives identical to those of the Jewish king, including execution of the death penalty even when not prescribed by statutory law.19<i class="footnote">The authority of gentile kings, and hence of non-Jewish courts, to impose capital punishment upon Jews is another matter entirely. Rabbenu Nissim, a fourteenth-century scholar, <i>Ḥiddushei ha-Ran, Sanhedrin</i> 46a, refers to imposition of capital punishment by autonomous Jewish courts (a practice not entirely unknown in the medieval period; see sources cited by Simchah Assaf, <i>Ha-Onshin Aḥarei Ḥatimat ha-Talmud</i> [Jerusalem, 5684] and Menahem Elon, <i>Ha-Mishpat Ha-Ivri</i> [Jerusalem, 5738], I, 435 and 648) and decries this practice other than at the direct license of the civil government, since, insofar as Jewish law is concerned, capital punishment has lapsed. <i>Ḥiddushei ha-Ran</i> does however recognize the authority of Jewish courts “to judge by the authority of the license of the king,” i.e., to impose the king’s justice when warranted. This position clearly acknowledges a) the penal authority of non-Jewish kings; and b) the legitimate exercise of this authority over Jews as well as gentiles. See R. Saul Israeli, <i>Ha-Torah ve-ha-Medinah</i>, IV, 73, who interprets Ran (incorrectly, in my opinion) as meaning that under such circumstances the <i>Bet Din</i> acts as if it were endowed with the authority of a Jewish monarch rather than as an agent of a gentile king. Cf., also <i>Tur Shulḥan Arukh, Ḥoshen Mishpat</i> 3. Similarly, <i>Maharam Ḥalavvah, Pesaḥim</i> 25b, recognizes the authority of gentile courts to enforce the death penalty upon Jews. This is also the position of Ritva and <i>Teshuvot ha-Rashba</i> as cited above, note 11, and appears to be the position of <i>Teshuvot Maharam me-Lublin</i>, no. 138. Me’iri, <i>Sanhedrin</i> 72b and <i>Baba Meẓi‘a</i> 83b, apparently acknowledges that non-Jewish monarchs are empowered to impose the death penalty upon Jews only for crimes which carry the death penalty under Jewish law. See also the position of R. Zevi Hirsch Chajes, <i>Torat Nevi’im</i>, ch. 7, cited below, note 24.</i> This extension of the authority of Noachide courts is explicitly affirmed by <i>Teshuvot Maharam Schick, Hoshen Mishpat</i>, no. 50.20<i class="footnote"><i>Maharam Schick</i> is, however, troubled by the phraseology employed by Rambam, <i>Hilkhot Roẓeaḥ</i> 2:4: “If a king <i>of Israel</i> wishes to kill them in accordance with the law of the monarchy and [for] the benefit of the world, he has authority [to do so].” <i>Maharam Schick</i> suggests that Rambam means that <i>even</i> a king of Israel may impose extra-statutory punishment and certainly a non-Jewish king, who is not subject to provisions of the Sinaitic Code, is permitted to do so. See also <i>Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim</i>, no. 208, s.v. <i>ad ka’n</i>.</i> For Ramban, these prerogatives may be derived from the <i>mizvah</i> of <i>dinin</i>. For Rambam they are inherent in the powers of the monarch. The phrase in I Samuel 8:20, "we shall be like all the nations," which serves as a preamble to the delineation of the royal responsibilities, certainly indicates that such responsibilities were shouldered by gentile kings prior to the establishment of a monarchy among Jews. A literal reading of this passage would indicate that Scripture recognizes that any prerogatives enjoyed by a Jewish monarch may be legitimately exercised by a gentile king as well.21<i class="footnote">Rambam, Hilkhot Melakhim 9:14, states that Noachides are obliged to appoint “<i>dayyanim ve-shoftim</i>” in every district. The terms “<i>dayyanim</i>” and <i>“shoftim”</i> are ostensibly synonymous and hence employment of both terms seems redundant. I would suggest that, for Rambam, each word has a distinct meaning. Although the term <i>“shofet”</i> is employed in Scripture as meaning “a judge,” in rabbinic Hebrew a judge who administers biblical law is known as a “<i>dayyan</i>.” Rambam frequently uses the term <i>dayyan</i> in this context and presumably uses it with the same connotation in this instance as well. Rambam may then have used the earlier and more general term “<i>shofet</i>” in the sense of a judge who administers a broader code of law, i.e., “the king’s law.” Contemporary Hebrew usage mirrors this distinction: a judge in a rabbinic court is a <i>dayyan;</i> a judge in an Israeli civil court is a <i>shofet</i>. Understood in this manner, Rambam declares that gentiles are obligated to appoint <i>dayyanim</i> to enforce the Noachide Code as well as <i>shoftim</i> who may exercise extra-statutory power similar in nature to that which for Jews constitutes <i>mishpat ha-melekh</i> or “the king’s justice.”</i> Indeed, quite apart from the right of non-Jewish rulers to impose extra-statutory penal sanctions, it is clear that non-Jewish monarchs also enjoy legislative prerogatives and may promulgate laws designed to establish a just and enduring society. For Ramban, this authority may be predicated upon the commandment concerning <i>dinin</i>. Rashi, <i>Gittin</i> 9b, has been understood as expressing the view that the principle <i>dina de-malkhuta dina</i> is rooted in the commandment of <i>dinin</i>.22<i class="footnote">See R. Iser Zalman Meltzer, <i>Even he-Azel, Hilkhot Malveh ve-Loveh</i> 27:1. This does not necessarily contradict the opinion of those authorities who maintain that <i>dinin</i> must be understood as binding Noachides to the same system of jurisprudence as Jews; see above, note 3. Noachides must enforce biblical law in areas where such legislation exists, but may legislate with regard to matters for which no specific provision is made.</i> The principle <i>dina de-malkhuta dina</i> empowers non-Jewish governments to adopt laws designed to preserve political and social stability which are binding upon Jews as well as upon gentiles. However, even for Rambam, such authority must exist even though its source may be somewhat obscure. Evidence for the authority of Noachides to promulgate legislation regulating areas of conduct not encompassed by the Noachide Code may be found, for example, in the Gemara's explanation, <i>Avodah Zarah</i> 36b, of Judah's readiness to burn Tamar at the stake on the basis of an edict of the <i>Bet Din</i> of Shem which prohibited fornication.23<i class="footnote">Cf., R. Yitzchak Ze’ev Soloveitchick, <i>Ḥiddusheiha-Griz al ha-Torah</i>, Genesis 38:25, who describes Tamar as a “proselyte” and the edict as banning cohabitation between a gentile and a “Jewess.” Nevertheless, the <i>Bet Din</i> of Shem certainly did not enjoy the halakhic status of a Jewish court; it would therefore appear that the validity of any edict promulgated by that <i>Bet Din</i> must be predicated upon Noachide law. See R. Hayyim ibn Atar, <i>Or ha-Ḥayyim</i>, Genesis 38:24, who declares, “Perhaps they were in possession of a tradition [empowering them] to promulgate edicts and to execute one who transgresses the edict.”</i> The incident concerning Tamar also makes it clear that non-Jewish kings enjoy the power to punish those who violate these edicts. Indeed, in the absence of accompanying penal power legislative authority would be vacuous. Since Rambam understands the concept of <i>dinin</i> in an entirely different manner, as noted earlier, such legislative and penal power must be understood as being inherent in the institution of the monarchy. It would then stand to reason that non-Jewish monarchs may also invoke the monarchical prerogative in punishing violations of the Noachide Code.
  Indeed, a significant number of authorities, both early and late, state explicitly that the prerogatives of the monarch are not limited to kings of Israel but extend equally to non-Jewish kings as well.24<i class="footnote">One authority, R. Zevi Hirsch Chajes, <i>Torat Nevi’im</i>, chap. 7, develops the position that disobedience to the edict of the monarch may legitimately be punished not because <i>lèse majesté</i> is punishable per se, but on other grounds entirely. According to R. Chajes, disobedience of the king’s law, if widespread, would lead to anarchy; hence the violator of the king’s law is, in effect, a <i>rodef</i>, i.e., his actions endanger the lives and safety of all members of society. He may, therefore, be put to death by virtue of the “law of pursuit.” According to R. Chajes, this line of reasoning serves to make Jews legitimately subject to the penal authority of non-Jewish courts. It is clear that for R. Chajes non-Jewish courts enjoy the selfsame penal authority as do Jewish courts in the administration of “the king’s justice.”</i> Many of these authorities explain that the principle <i>dina de-malkhuta dina</i> is predicated upon the concept of the "king's law" which they regard as binding not only when decreed by kings of Israel but even when promulgated by non-Jewish monarchs as well.25<i class="footnote">See Ramban, Rashba, Ran and Ritva in their respective commentaries to <i>Baba Batra</i> 55a; R. Meir ha-Kohen of Saracusto, <i>Shitah Mekubeẓet, Baba Kamma</i> 97b; <i>Teshuvot ha-Rashba</i>, II, no. 134 and III, no. 109; <i>Migdal Oz, Hilkhot Melakhim</i> 4:1; <i>Radbaz, Hilkhot Melakhim</i> 4:1; <i>Derashot ha-Ran</i>, no. 11; R. Shimon ben Ẓemaḥ Duran, <i>Teshuvot Tashbaẓ</i>, I, no. 158; R. Joseph Karo, <i>Teshuvot Avkat Rokhel</i>, no. 47; R. Moshe Trani, <i>Kiryat Sefer, Hilkhot Gezeilah</i> 8; <i>Taz, Yoreh De‘ah</i> 157:8 (the comment of <i>Migdal Oz, Even Boḥen</i> 1:73, with regard to the position of <i>Taz</i> appears to be inaccurate); R. Elijah of Vilna, <i>Bi’ur ha-Gra, Ḥoshen Mishpat</i> 369:34; R. Abraham Rodrigez, <i>Teshuvot Oraḥ la-Ẓaddik, Ḥoshen Mishpat</i>, no. 1; Rabbi A. A. Kaplan, <i>Divrei Talmud</i>, I, 171-172; and Shmuel Shilo, <i>Dina de-Malkhuta Dina</i>, pp. 65-79. On the other hand, one authority explicitly rejects the thesis that gentile kings enjoy the prerogatives of “the king’s law”; see <i>Tosafot, Sanhedrin</i> 20b, and cf., <i>Dvar Avraham</i>, I, no. 1, p. 14f. Radbaz, Hilkhot Melakhim 3:8, states that monarchical prerogatives are vested solely in a king who is “enthroned by a prophet or who is accepted by all of Israel.” On the basis of a narrative recorded in <i>Bereshit Rabbah</i> 94:9 and <i>Va-Yikra Rabbah</i> 19:6 it would appear that the question of whether or not <i>lèse majesté</i> vis-à-vis a gentile king constitutes a capital crime was a matter of dispute between King Jehoiakim and the Sanhedrin. The Midrash relates that Nebuchadnezzar demanded of the Great Sanhedrin that the rebellious Jehoiakim be delivered to him and he would depart in peace. Jehoiakim, viewing his relationship to Nebuchadnezzar as that of a vassal to a lord rather than as that of a subject to a sovereign, reacted by citing the verse, “You shall not deliver a servant to his master” (Deut. 23:16). The members of the Great Sanhedrin, however, countered by comparing the matter with the turning over of Sheba ben Bichri (II Samuel 20:1-22) for execution in punishment for <i>lèse majesté</i> against King David. See R. Chajes, <i>Torat Nevi’im</i>, chap. 7 and this writer’s Hebrew article, “Be-Inyan Tenu Lanu Eḥad mi-Kem,” <i>Or ha-Mizraḥ</i>, Tishri 5743; cf., <i>Minḥat Ḥinnukh</i>, no. 296, s.v. <i>u-mevu’ar</i>.</i> Nevertheless, as stated earlier, authority to legislate and to administer punishment for infractions of such legislation is not tantamount to authority to ignore rules of evidence as well. It remains to be established that even a Jewish monarch is empowered to administer punishment on the basis of circumstantial evidence.
  One nineteenth-century rabbinic authority does state explicitly that the king may pass judgment on the basis of <i>umdana</i> or circumstantial evidence alone.26<i class="footnote"><i>Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim</i>, no. 208, states cryptically: “But that which is not mentioned in the Torah … the king and Sanhedrin may see in accordance with the place and in accordance with the time and similarly, <i>a fortiori</i>, they may remove the many destructive [persons], the murderers, without witnesses or the like. …”</i> R. Zevi Hirsch Chajes, <i>Torat Nevi'im</i>, chap. 7,27<i class="footnote">Published in <i>Kol Sifrei Maharaẓ Ḥayes</i>, I, 49.</i> states that Rambam's source for his ruling that the king may execute a person who commits an act of homicide even in the absence of prior warning, even though biblical law requires prior warning, is a discussion found in <i>Sanhedrin</i> 49a. The discussion seeks to elucidate King Solomon's justificaton for the execution of Joab (I Kings 2:29-34). The Gemara states that Joab was culpable for the murder of Amasa despite the fact that there was no prior warning. R. Chajes argues that the same talmudic discussion serves to establish that the king may administer punishment on the basis of circumstantial evidence. R. Chajes endeavors to show that proof of Joab's culpability was entirely circumstantial. Amasa died because he was struck by Joab "on the fifth rib" (II Samuel 20:10). Similarly, Abner, was killed by Joab with a blow "on the fifth rib" (II Samuel 3:27). The blow "on the fifth rib" was fatal, declares R. Joḥanan, because that is "where the bile and the liver are attached." Joab's premeditation to kill, argues R. Chajes, could have been known only circumstantially, i.e., by the unlikelihood that the vulnerable spot near the fifth rib could have been struck other than by direct aim.
  This argument does not appear to be compelling for reasons that can best be explained only upon citation of the relevant discussion:28<i class="footnote">The citation, including annotation, is taken from the Soncino translation; footnote numbers have been changed.</i>
  Then Joab was brought before the Court, and he [Solomon] judged and questioned him. 'Why didst thou kill Abner?'1<i class="footnote">II Sam. III, 27.</i> He answered, 'I was Asahel's2<i class="footnote">brother, who pursued Abner when he fled for his life, after having been defeated by Joab at Gibeon whilst fighting for Ishbosheth, Saul’s surviving son, v. II Sam. II, 23.</i> avenger of blood.' 'But Asahel was a pursuer!'3<i class="footnote">Abner, seeing his life in danger, killed him in self-defense. Cf. II Sam. II, 8-32.</i> 'Even so,' answered he; 'but he [Abner] should have saved himself at the cost of one of his [Asahel's] limbs.'4<i class="footnote">so incapacitate him, instead of inflicting a mortal wound. If one can injure his adversary in self-defense, but kills him instead, he is guilty of murder.</i> 'Yet perhaps he could not do so,' remonstrated [Solomon], 'If he could aim exactly at the fifth rib,' he retorted, ('even as it is written, <i>Abner with the hinder end of the spear smote him at the waist;</i>5<i class="footnote">Sam. II, 23. <i>Ḥomesh</i> ‘loins,’ ‘waist,’ means also ‘fifth.’ Hence R. Joḥanan’s interpretation.</i> concerning which R. Joḥanan said: It was at the fifth rib, where the gall-bladder and liver are suspended,)—could he not have aimed at one of his limbs?' Thereupon [Solomon] said: 'Let us drop [the incident of] Abner; why didst thou kill Amasa?'6<i class="footnote">of Abigail, King David’s sister, who commanded the rebel army of Absalom. Subsequently he was pardoned by David and given the command of the army when the rebellion of Shebah broke out (II Sam. XX). On that account Joab saw a dangerous rival in him. II Sam. XVII, 25; XIX, 14.</i> He answered: 'Amasa disobeyed the royal order, for it is written, <i>Then said the King to Amasa, Call me the men of Judah together within three days etc. So Amasa went to call the men of Judah together; but he tarried etc.'</i> 'But,' said he [Solomon], 'Amasa interpreted [the particles] '<i>Ak</i> and <i>Rak</i>.'7<i class="footnote">‘but’; <i>rak</i>, ‘only,’ both denoting limitation.</i> [Thus:] he found them8<i class="footnote">men of Judah.</i> just as they had begun [the study of] a tractate; whereupon he said: It is written, <i>Whosoever he be that shall rebel against thy</i> [the King's] <i>commandments and shall not hearken unto thy words in all that thou commandest him, he shall be put to death</i>.9<i class="footnote">I, 18.</i> Now, one might have thought that this holds good even [when the transgression is committed] for the sake of the study of the law: it is therefore written, <i>only</i> [Rak] <i>be strong and of good courage</i>.10<i class="footnote">intimating a limitation. Hence the duty to fulfill the King’s command does not apply where one is engaged in the study of the law. According to the view held by Amasa, God’s Law seemed more important to him than the will of the King, and no transgression was involved in waiting until they had finished their study.</i>
  This discussion does indeed show that the king may execute evildoers even in the absence of <i>hatra'ah</i> or warning. Joab seeks to defend his actions by claiming that Amasa was guilty of <i>lèse majesté</i>. While that plea was dismissed as factually incorrect it would have served to nullify any warning which might have been addressed to Joab before the deed. The warning must be received and accepted by the would-be murderer.29<i class="footnote">See Rambam, <i>Hilkhot Sanhedrin</i> 12:2.</i> A response that the deed is legally justified is tantamount to a rejection of the warning.
  The Gemara points to the fatal blow on "the fifth rib" in an endeavor to establish Abner's culpability for the death of Asahel. Asahel was pursuing Abner with intent to kill; hence, ostensibly, Abner was justified in killing Asahel and Joab could not plead that he was avenging a wrongful death. However, self-defense is, in this discussion, regarded by the Gemara as an acceptable plea only if the danger could not be averted other than by causing the death of the pursuer.30<i class="footnote">This is, however, at variance with the normative halakhah as recorded by Rambam, <i>Hilkhot Roẓeaḥ</i> 1:13 and Hilkhot Melakhim 9:4. See, however, Rabad, Hilkhot Melakhim 9:4; Me’iri, <i>Sanhedrin</i> 49a; and sources cited by <i>Margaliyot ha-Yam, Sanhedrin</i> 49a. See also <i>Teshuvot Rivash</i>, no. 238 and <i>Mishneh le-Melekh, Hilkhot Ḥovel u-Mazik</i> 8:10.</i> Abner could have maimed Asahel and hence it was not necessary for Abner to kill Asahel in order to eliminate the threat to his own life. Therefore, Joab might rightfully avenge the wrongful death of Asahel. Asahel was struck "on the fifth rib," an unlikely occurrence if Abner had intended only to maim. Accordingly, argued Joab, he could not be held culpable for the death of Abner because of his claim that he was the blood avenger of Asahel and could therefore kill Abner with impunity. This portion of the talmudic discussion certainly does not point to conviction and punishment on the basis of circumstantial evidence. Circumstantial evidence, viz., striking on the fifth rib, is adduced in order to <i>exonerate</i> Joab.31<i class="footnote">The court did not hold Joab culpable for the death of Abner. That charge was dismissed with the statement, “Let us not consider Abner.” The Gemara’s dismissal of that incident is somewhat problematic. Since Joab possessed only circumstantial evidence demonstrating that Abner intended to kill rather than to maim he had no right to assume the role of blood-avenger. It appears that although Joab could not legitimately assume the role of blood-avenger he could nevertheless not be held culpable since his claim would have to be demonstrably refuted beyond doubt in order for him to be held liable for punishment. Cf., however, Rambam, <i>Hilkhot Roẓeaḥ</i> 6:5. See also <i>Urim ve-Tumim, Urim</i> 2:2, who maintains that the blood-avenger may not act prior to a judicial determination by the <i>Bet Din</i>. This view is disputed by <i>Keẓot ha-Ḥoshen</i>, 2:1. <i>Keẓot ha-Ḥoshen</i>, while he does not require a judicial finding of culpability, agrees that the blood-avenger may not act in the absence of testimony establishing that bloodshed did in fact occur.</i>
  With regard to the killing of Amasa, the Gemara makes no mention of the presence or absence of witnesses, nor does it state that intent to kill was inferred only circumstantially. There may well have been witnesses to the deed. Indeed, since Joab sought to claim that Amasa was being put to death as a rebel,32<i class="footnote">This plea does seem to contradict the view of those authorities who maintain that only the <i>Bet Din</i> and not the king’s magistrates may impose such penalties in administering “the king’s justice”; see above, note 14.</i> Joab, conceivably, may even have declared his intention prior to the act. There is certainly no evidence that Joab's intent was known only circumstantially. Moreover, no proof can be brought from this narrative to substantiate the contention that circumstantial evidence is acceptable in administering the king's justice because Joab makes no attempt to deny his act. He admits that he has, in fact, killed Amasa. A confession is clearly sufficient grounds for the king to execute an evildoer, as has been shown earlier. Yet, admissibility of a confession in administering "the king's justice" does not entail that circumstantial evidence may be accepted as well.
  Nevertheless, it appears that Rambam does maintain that circumstantial evidence may be admitted in administering "the king's justice." In his <i>Guide of the Perplexed</i>, Book III, chapter 40, Rambam unequivocally states that the king may act on the basis of circumstantial evidence alone. In his discussion of the rationale underlying various <i>mizvot</i>, Rambam advances a novel view regarding the purpose of the commandment concerning "breaking the neck of a heifer" (Deut. 21:1-8), a ritual performed when a homicide victim is found outside the city limits and the perpetrator is unknown. The purpose of this rite, according to Rambam, is to publicize what has transpired so that anyone having information concerning the identity of the murderer will come forward. As Rambam states: "When the murderer is discovered, the benefit of the law is apparent for [even] if the <i>Bet Din</i> cannot sentence him to death the king may execute him, for the king may execute—<i>be-amatla'ot u-be-de-dami</i> (lit., by circumstances and by analogy)—<i>on the basis of circumstantial evidence</i> [emphasis supplied]; and if the king does not execute him the avenger of blood33<i class="footnote">Rambam’s statement with regard to the king’s power is unequivocal; the king may execute on the basis of circumstantial evidence. His position with regard to the blood-avenger is less clear. There is no explicit statement declaring that the blood-avenger may act on the basis of circumstantial evidence. From the context it is, however, clear that he may act upon the testimony of a single witness, even of a woman. Earlier in the same paragraph Rambam states that the purpose of the heifer is achieved if even a single person, even a woman, comes forward. It is in that context, i.e., in the context of testimony by a single witness, that Rambam declares that the king or avenger of blood may put the murderer to death. The further statement regarding circumstantial evidence is added parenthetically in conjunction with Rambam’s reference to the prerogative of the king. Nevertheless on the basis of <i>Or Sameaḥ</i>’s equation of the king, the blood-avenger and Noachide courts, it would seem that both the blood-avenger and Noachide courts may impose capital punishment on the basis of circumstantial evidence. See also <i>Encyclopedia Talmudit</i>, V, 223, note 31.</i> may scheme and plan his death, and at last kill him." Rambam's statement in the <i>Guide</i> with regard to circumstantial evidence in administering "the king's justice," was apparently overlooked by R. Chajes.
  In summary, it may be stated that although R. Zevi Hirsch Chajes is the sole latter-day authority who states definitively that circumstantial evidence is acceptable in administering "the king's justice," this does appear to be the clearly stated position of Rambam. While it would be logical to assume, <i>mutatis mutandis</i>, that the selfsame rules of evidence which govern administration of "the king's justice" prevail in Noachide courts as well, as is undoubtedly the position of <i>Or Sameaḥ</i> and Maharam Schick,34<i class="footnote">There is some ambiguity regarding Maharam Schick’s statements as recorded in <i>Teshuvot Maharam Schick, Ḥoshen Mishpat</i>, no. 50. A woman was suspected of having poisoned her husband “and there were many <i>umdanot</i> with regard to this and some [sort of] confession.” Maharam Schick discusses at length the question of whether or not the woman may be turned over to civil authorities. On first reading, it would appear that Maharam Schick affirms the right of a non-Jewish court to administer punishment on the basis of <i>umdana</i> or circumstantial evidence. However, from the ensuing discussion, it appears that the gentile courts would convict the woman on the basis of her confession rather than on the basis of circumstantial evidence.</i> no compelling argument has been advanced in support of this thesis. Assuming, <i>arguendo</i>, that the rules of evidence prescribed for Noachide courts are identical with those employed in administering "the king's justice," it may be concluded only that Noachides are endowed with discretionary power with regard to imposition of the death penalty when proof of guilt is based upon circumstantial evidence. Noachide courts are certainly under no obligation to impose the death penalty in such instances.
  Accordingly, it may be concluded that current death-penalty legislation allowing for imposition of the death penalty on the basis of circumstantial evidence cannot be viewed as mandatory from the perspective of Jewish law.35<i class="footnote">It is of some interest to note that the Agudath Israel spokesman and Jewish representative in the Polish Sejm, Rabbi Aaron Lewin, popularly known as the Reisher Rav, was a prime figure in the legislative effort to abolish capital punishment in Poland prior to World War II. See Isaac Lewin, <i>Late Summer Fruit</i> (New York, 1960), p. 32. The reasons for Rabbi Lewin’s opposition to capital punishment are not stated in <i>Late Summer Fruit</i>. In a recent article Isaac Lewin presents a summary of R. Aaron Lewin’s address to the Sejm in which the sole reference to Jewish sources is a citation of the statement of R. Tarfon and R. Akiva, <i>Makkot</i> 7a, “If we had been members of the Sanhedrin no man would ever have been put to death.” See <i>Dos Yiddishe Vort</i>, Ḥeshvan-Kislev 5730, p. 30. Since Rabbi Lewin was well aware that normative Jewish law is in accordance with the opposing view of R. Shimon ben Gamaliel it must be assumed that Rabbi Lewin’s true considerations were reserved <i>in pectore</i>.</i> While a strong argument may be made in demonstrating that Noachide courts may exercise discretionary authority in admitting circumstantial evidence, either in enforcement of the provisions of the Noachide Code or by virtue of authority delegated to them by the "sovereign" in imposing "the king's justice," the existence of even such discretionary authority cannot be demonstrated beyond cavil.
  Rabbi Diskin further cites a statement of the <i>Mekhilta</i> to the effect that the conversion of an Amalekite has no efficacy and hence even subsequent to "conversion" the lad had the status of a non-Jew; cf., however, Rambam, <i>Hilkhot Isurei Bi'ah</i> 12:7 and Hilkhot Melakhim 6:4; <i>Kesef Mishneh, Hilkhot Melakhim</i> 6:4; and <i>Ba'al ha-Turim</i>, Exodus 28:6. See also R. Judah Gershuni, <i>Mishpat ha-Melukhah</i> (New York, 5710) p. 144. For other interpretations see R. Aryeh Pomeranchik, <i>Emek Berakhah</i>, and R. Eliezer Dvorets, addenda, p. 15.
  The connotation of the term as used here is quite different from the concept of "the king's justice" in common law. The prevailing concept as formulated by the thirteenth-century jurist, Bracton, <i>On the Law and Customs of England</i>, trans. Samuel E. Thorne (Cambridge, 1868), II, 305-306, is that the Crown is the sole foundation of justice and it is the King who is the proper judge of all temporal disputes and only in order that his labor may be lessened does he delegate judicial authority to justices, sheriffs, and other ministers and officials. However, despite Bracton's allusions to I Samuel in describing the authority of the king, it is clear that historically, in England, the royal courts were intruders upon older jurisdictions and did not originally have absolute authority. Prior to the twelfth century, "the king's justice" did imply a special and reserved power of the king distinct from ordinary judicial procedure. The king's justice during the Anglo-Saxon period was invoked primarily on behalf of a person who was unable to secure a hearing in his own jurisdiction, usually because his adversary was protected by a powerful lord. Indeed many statutes harshly forbade bringing a suit before the king unless all other avenues of judicial process had been exhausted. The king's power of redress seems to have been limited to remanding the case to local officials for a hearing with a threat of punishment if justice would be denied. Alternatively, he might negotiate an extra-judicial compromise beween the parties. See Sir Frederick Pollock and Frederic William Maitland, <i>The History of English Law</i> (Washington, D.C., 1955), I, 40-41 and Henry Adams, "The Anglo-Saxon Court of Law" in <i>Essays in Anglo-Saxon Law</i>, n.a. (Boston, 1905), pp. 25-26. Under the Norman kings the power of the king's court grew, but it appears to have been a court only for great men and great causes. The law administered in this court seems to have been in the nature of equity rather than of statute law. See <i>History of English Law</i>, pp. 107-108. While, at least in those earlier times, the king's justice was indeed distinct from ordinary justice, the authority of the king was not nearly as broad as the judicial authority of the king in Jewish law and appears to have been exercised primarily with regard to matters of jurisprudence rather than with regard to criminal infractions of an interpersonal nature. Conversely, litigation of a strictly private nature, having no bearing upon the perfection of the social order, is completely outside the sphere of "the king's justice" as defined by halakhic sources.
  <i>Or Sameaḥ, Hilkhot Melakhim</i> 3:10, draws attention to Rambam's phraseology in describing the royal prerogative and observes that, for Rambam, the king's extra-judicial penal authority is limited to punishment of infractions bearing upon social welfare; extra-legal punishment for infractions of ritual commandments is reserved to the <i>Bet Din</i> exclusively. This distinction appears to be contradicted by Rambam's statement, <i>Hilkhot Sanhedrin</i> 18:6, in which Rambam declares: "that Joshua killed Achan and David [killed] the Amalekite proselyte on the basis of their own confession was an emergency measure or [by virtue of the] law of the monarchy." Achan's transgression, as described in Joshua 7:1, was a sin against God rather than a sin against society. Rambam's statement regarding the execution of Achan is problematic in any event since those executed by the authority of the king are put to death by the sword whereas Achan was stoned. See <i>Teshuvot Hatam Sofer, Oraḥ Hayyim</i>, no. 208, and R. Rabinowitz-Teumim, <i>Ha-Torah ve-ha-Medinah</i>, IV, 75, note 11. <i>Hagahot Ben Aryeh, Hilkhot Sanhedrin</i> 14:2, suggests that the words "by law of the monarchy" refer only to David's execution of the Amalekite, but not to Joshua's execution of Achan.
  Moreover, as noted by <i>Or Sameaḥ</i> himself, this thesis seems to be contradicted by a statement found in the Palestinian Talmud, <i>Sanhedrin</i> 6:3, indicating that the king may impose capital punishment in instances of sexual licentiousness. It is indeed this very source which is cited by Radbaz in his commentary on <i>Mishneh Torah, Hilkhot Melakhim</i> 3:10, as the basis for Rambam's ruling regarding the extra-judicial punitive power of the monarch.
  A somewhat different thesis which takes into account this source is advanced by R. Meir Dan Plocki, <i>Hemdat Yisra'el</i> (Pietrkow, 5687), <i>Kuntres Ner Mizvah, ḥelek ha-lavin</i>, no. 71, pp. 75-76. <i>Hemdat Yisra'el</i> asserts that the king is, in effect, empowered to enforce upon Jews the provisions of the Noachide Code. His authority to punish transgression is limited to violations of the fundamental prohibitions binding upon gentiles as well as Jews. Thus, the king is required to execute the death penalty by means of the sword, as stated by Rambam, Hilkhot Melakhim 3:8, rather than by other means because it is this mode of execution which is prescribed by the Noachide Code. It then follows, as noted by <i>Hemdat Yisra'el</i>, that Noachide courts may convict on the basis of a confession of guilt just as the king may act on the basis of a confession. The king's authority to act on the basis of a confession is recorded by Rambam, <i>Hilkhot Sanhedrin</i> 18:6. Rambam's terminology, <i>Hilkhot Rozeaḥ</i> 2:4, "and all such murderers <i>and such as are similar to them</i> …," should then be understood as referring to similar violators or prohibitions included in the Noachide Code, rather than as referring to persons guilty of infractions against their fellow man. See also R. Meir Dan Plocki, <i>Klei Hemdah al ha-Torah</i> (Warsaw, 5695), <i>Parshat Shoftim</i>, sec. 6, p. 119 and <i>Parshat Shemot</i>, sec. 4, p. 146.
  [Rambam further declares that even when the death penalty is not deemed necessary in order to prevent a breakdown of law and order "murderers and the like" may nevertheless not be permitted to go unpunished even though they have committed their crimes in a manner which enables them to escape capital culpability. In <i>Hilkhot Rozeaḥ</i> 2:5, Rambam writes:
  If the king does not kill them, and the needs of the time do not demand their death as a preventive measure, the <i>Bet Din</i> is nevertheless obligated to flog them almost to the point of death, to imprison them in a fortress or a prison for many years, and to afflict them with all manner of affliction in order to frighten and terrify other wicked persons, lest such a case become a pitfall and a snare, enticing one to say, "I will arrange to kill my enemy as did So-and-So and I will be acquitted."]
  Rabbenu Nissim, <i>Derashot ha-Ran</i>, no. 11, however, asserts that this power is vested solely in the king, at least insofar as offenses "against man" are concerned. If the <i>Bet Din</i> enjoys such power at all, asserts Rabbenu Nissim, it is limited to offenses "against God." Rabbenu Nissim concedes, however, that in the absence of a king such monarchical prerogatives are vested in the Great Sanhedrin. See also <i>Or Sameaḥ, Hilkhot Rozeaḥ</i> 3:10. Abarbanel, in his commentary on Deut. 17:8, takes issue with Rabbenu Nissim but apparently maintains that only the Great Sanhedrin, as distinct from inferior courts, possesses this power. Similarly, <i>Nemukei Yosef, Sanhedrin</i> 52b, declares that the power to impose capital punishment in this manner is limited to the Great Sanhedrin. Similarly, <i>Teshuvot ha-Rosh, klal</i> 17, no. 8, states that capital punishment may be imposed only by a Sanhedrin. According to <i>Nemukei Yosef</i>, inferior courts may impose extraordinary forms of corporal punishment but may not execute malefactors. Rabbenu Nissim, <i>Hiddushei ha-Ran, Sanhedrin</i> 46a, states that extra-statutory punishment can be imposed only by a <i>Bet Din</i> which is "expert and ordained as [were] Shimon ben Shetaḥ and his colleagues." These positions are rejected by Shulḥan Arukh, Hoshen Mishpat 2:1. See also <i>Teshuvot R. Ya'akov ben ha-Rosh</i>, no. 58; <i>Teshuvot Rivash</i>, no. 251; <i>Me'iri, Sanhedrin</i> 52b; and <i>Teshuvot Maharam me-Lublin</i>, no. 138. Cf., however, <i>Urim ve-Tumim, Urim</i> 2:2. <i>Teshuvot ha-Rashba</i>, V, no. 238, states that the death penalty may be imposed only by the greatest authority of the generation; see also <i>Tur Shulḥan Arukh, Hoshen Mishpat</i> 2:1. For an analysis of Rambam's position see <i>Birkei Yosef, Hoshen Mishpat</i> 2:3 and R. Benjamin Rabinowitz-Teumim, <i>Ha-Torah ve-ha-Medinah</i>, IV, 56-58.
  There appears to be yet a further distinction between the extra-statutory authority of the king and that of the <i>Bet Din</i>. Rambam, <i>Hilkhot Sanhedrin</i> 24:4, declares that the <i>Bet Din</i> may impose such punishment solely on an ad hoc basis, but dares not promulgate punitive statutes of like nature for posterity. No such statement is made regarding the royal power. On the contrary, Rambam, Hilkhot Rozeaḥ 2:4, declares, "If the king of Israel wishes to kill them in accordance with the law of the monarchy (<i>be-din ha-malkhut</i>) and perfection of the world, he has authority to do so; similarly, if the <i>Bet Din</i> sees fit to kill them as an emergency measure (<i>be-hora-'at sha'ah</i>) if the times require such, they have authority [to act] in accordance with what they deem [proper]." Rambam appears to distinguish between the emergency ad hoc power of the <i>Bet Din</i> and the more general authority of the king. Cf., R. Joseph Dov Cohen, <i>Ha-Torah ve-ha-Medinah</i>, I (Nisan 5709), 21; R. Sha'ul Israeli, <i>Ha-Torah ve-ha-Medinah</i>, II, 80, note 2, and p. 88; R. Judah Gershuni, <i>Ha-Torah ve-ha-Medinah</i>, II, 72; and idem, <i>Mishpat ha-Melukhah</i> (New York, 5710), p. 96. This is contrary to the position of R. Isaac ha-Levi Herzog, <i>Ha-Torah ve-ha-Medinah</i>, I, 18, who maintains that the extra-judicial powers of the monarch are limited to emergency situations and that he may not impose extraordinary punishment on a regular basis. This distinction between the prerogative of the monarch and that of the <i>Bet Din</i> also seems to be ignored by R. Zevi Hirsch Chajes, <i>Torat Nevi'im</i>, ch. 7.
  Rabbi Gershuni, <i>Mishpat ha-Melukhah</i>, p. 96, notes that Rambam, Hilkhot Melakhim 3:10, in recording the king's right to administer capital punishment on the basis of the testimony of a single witness, adds the phrase "when the hour requires thus" and suggests that while the king enjoys broad power with regard to imposition of the death penalty for criminal acts he may suspend laws of evidence only as an emergency measure.
  Of interest in this regard is the solution advanced by Rabbenu Nissim, <i>Derashot ha-Ran</i>, no. 11, to the frequently posed question regarding Samuel's criticism of the populace for demanding a king as recorded in I Samuel 8:6. Those requests were, after all, ostensibly but for the fulfillment of a biblical obligation incumbent upon them. Rabbenu Nissim answers that Samuel was distressed, not at the desire for the establishment of a monarchy, but because the people expressed themselves by saying, "give us a king <i>to judge us</i>." A king to lead them in battle was necessary, but in a well ordered society no deterrent to potential wrong-doers beyond the established legal and judicial system should be necessary. The request for "the king's justice" reflected the conviction that administration of Torah law by the <i>Bet Din</i> would be insufficient and, accordingly, betrayed an ethical deficiency. A similar explanation, identical in all salient points, is also advanced by R. Abraham Samuel Benjamin Sofer in his commentary on the Bible, <i>Ketav Sofer</i>, Deut. 17:14.
  Cf., <i>Hemdat Yisra'el</i>, above, note 11.
  Other authorities, however, deny that non-Jewish monarchs may legitimately impose the death penalty upon Jewish subjects. Rabbenu Asher, <i>Teshuvot ha-Rosh, klal</i> 8, no. 10, permits a person to swear a false oath in order to prevent the execution of a Jew by a gentile court. This opinion is authoritatively cited by Rema, <i>Yoreh De'ah</i> 232:14. The case discussed, however, involves cohabitation with a non-Jewess, an infraction which does not carry the death penalty in Jewish law. In another responsum, <i>Teshuvot ha-Rosh, klal</i> 17, no. 8, this authority expresses amazement at discovering upon his arrival in Spain that Jewish courts in that country imposed capital punishment on the basis of authority delegated to them by the king. He notes that although surrender of judicial autonomy in criminal cases would have led to an increased number of executions of Jews—including, no doubt, a significant incidence of unjust executions—he himself refused to acquiesce in the practice, but made no attempt to interfere in the imposition of capital punishment by others.
  R. Ya'akov Emden, <i>She'ilat Ya'avez</i>, II, no. 9, forbade a Jew who had committed an act of homicide to swear falsely in order to be exonerated. See also R. Ya'akov Emden, <i>Migdal Oz, Even Boḥen</i> 1:101. His reasoning, however, is not predicated upon recognition of the court's authority, which would effectively preclude a false oath, but upon the fact that, according to Jewish law, the defendant was deserving of death "at the hands of Heaven" and therefore the sentence of death by a non-Jewish court should be recognized and accepted as the operation of Providence. However, in <i>Even Boḥen</i> 1:73, R. Ya'akov Emden declares that one who disobeys the monarch—even a gentile monarch—is liable to the death penalty as a matter of biblical law. In sharp contradistinction, <i>Teshuvot Hatam Sofer</i>, VI, no. 14, is most emphatic in stating, "There is no way in the world that a Jew may be culpable of death in accordance with their laws… and thus all their executions are not in accordance with the law of the Torah." <i>Hatam Sofer</i> accordingly maintains that efforts should be made to prevent execution of Jews found guilty by non-Jewish courts. See also R. Ya'akov Breisch, <i>Teshuvot Helkat Ya'akov</i>, IV, no. 23. R. Shlomoh Luria, <i>Hokhmat Shlomoh, Niddah</i> 61a, declares that when it is known with certainty that the condemned person has committed an act of homicide "it is forbidden to save [him]" and that the proper posture is one of non-intervention. Cf., also R. Jair Chaim Bacharach, <i>Teshuvot Havot Ya'ir</i>, no. 146. See also, R. Isaac Liebes, <i>Teshuvot Bet Avi</i>, I, <i>Hoshen Mishpat</i>, no. 158; idem, <i>Teshuvot Bet Avi</i>, II, no. 144; idem, <i>No'am</i>, XXI, 125ff.; and idem, <i>Teshuvot Bet Avi</i>, III, no. 161, secs. 14-15, and no. 162.
  It may perhaps be argued that the royal prerogatives may be classified in two categories: viz., those designed to be exercised for the benefit of society and those which redound to the personal benefit and glory of the monarch. The latter are derived from I Samuel 8:11-17 and, indeed, the very existence of such prerogatives is a matter of dispute; see <i>Sanhedrin</i> 20b. It would appear, however, that those which are designed to be exercised for the benefit of society, i.e., "perfection of the world," accrue to non-Jewish monarchs as well, as evidenced by the incident of Tamar, and are not the subject of the controversy recorded in <i>Sanhedrin</i> 20b. Those authorities who maintain that gentile kings enjoy the prerogatives encompassed by the second category certainly agree that they enjoy those of the first as well. But <i>Tosafot</i>, who denies that royal prerogatives extend to non-Jewish kings, may well be understood as referring to those of the second category only, i.e., those derived from I Samuel; <i>Tosafot</i> may well consider that prerogatives encompassed within the first category are vested in non-Jewish kings as well. Cf., however, R. Shlomoh Zalman Auerbach, <i>Ma'adanei Erez, Shev'it</i>, no. 20, sec. 12.
  
  Chapter XVIII Status of the Deaf Mute in Jewish Law
  
  <i>And on that day the deaf shall hear the words of the book and … the eyes of the blind shall see</i>.
  ISAIAH 29:18
  Reports of a decision, by a two-to-one vote, on the part of an Israeli <i>Bet Din</i>, to reject the candidacy of a deaf-mute for conversion to Judaism were widely publicized in the Anglo-Jewish press. According to <i>The Jerusalem Post</i>, February 11, 1977, the case involved a deaf-mute woman who emigrated to Israel from Iran. She was reportedly proficient in the use of sign language and also capable of speaking some Farsi, although her speech was barely comprehensible. The case was heard by three members of the Tel Aviv Rabbinic District Court, Rabbis Chaim Zimbalist, Abraham Azulai and Shlomoh Deichovski.1<i class="footnote">This decision has now been published in <i>Piskei Din shel Batei ha-Din ha-Rabbaniyim</i>, vol. X, no. 17, pp. 193-209.</i> Many perceived the decision not to accept the woman as a proselyte as a form of discrimination against persons suffering from this handicap.
  It is possible, however, without entering into the merits of this particular case, to dispel the inevitable misconceptions which have arisen with regard to the status of the <i>ḥeresh</i>, or deaf-mute, in Jewish law. The restrictive statements regarding deaf-mutes must be understood in terms of the context in which they apply.
  The basis of all special provisions concerning deaf-mutes is that, according to Jewish law, they are not considered to be mentally competent. The phrase "the deaf-mute, the mentally incompetent, and the minor" recurs repeatedly in rabbinic literature in reference to persons who cannot be held responsible for their actions and who lack the requisite intelligence for the performance of various ritual and civil acts. Thus, deaf-mutes cannot serve as ritual slaughterers or as witnesses before a <i>Bet Din</i>, cannot be counted in a <i>minyan</i>, cannot dispose of property, etc. They are considered incapable of entering into contracts or transactions requiring responsibility and independence of will. These provisions are predicated upon the halakhic presumption that one who can neither hear nor speak has not acquired the maturity of intellect necessary for legal responsibility. The deaf-mute, since he does not communicate, is deemed to be intellectually undeveloped and enjoys a legal status similar to that of a minor.2<i class="footnote">For a review of the literature on deafness and intelligence as well as a discussion of the methods of determining the intelligence of deaf individuals by means of non-verbal tests see Cornelius P. Goetzinger, “The Psychology of Hearing Impairment,” in <i>Handbook on Clinical Audiology</i>, ed. J. Katz (Baltimore, 1972), 670-675.</i>
  Mankind has long recognized that speech and reason go hand in hand, although whether it is reason which gives rise to speech, or speech which is a prerequisite for the acquisition of reason, has been a matter of dispute among philosophers. It is no accident that man alone among the animal species has developed speech, for it is only man who is a rational animal. Indeed, the Greeks employed a single term <i>"logos"</i> for both speech and reason. Similarly, the Arabic term <i>"kala"</i> means both "to speak" and "to reason." Medieval Jewish philosophy refers to man as a <i>medabber</i>, not because he possesses the faculty of speech, but because he possesses the faculty of reason. Some philosophers asserted that there can be no reasoning without speech. Thus, Thomas Hobbes writes in the fourth chapter of his <i>Leviathan</i>, "The Greeks have but one word, <i>Logos</i>, for both <i>Speech</i> and <i>Reason;</i> not that they thought there was no Speech without Reason; but no Reasoning without Speech." Later, in chapter 5, he remarks, "Children, therefore, are not endued with Reason at all, till they have attained the use of Speech."
  Halakhah does not necessarily view reasoning as a form of subliminal speech. Speech is indicative of a certain level of intelligence but the ability to speak is not the sole criterion in determining legal responsibility. The hearing person, although he may be mute, is accounted fully responsible. R. Asher b. Yeḥiel, <i>Teshuvot ha-Rosh</i>, no. 85, sec. 13, followed by Shulḥan Arukh, Hoshen Mishpat 235:19, declares unequivocally that even minimal hearing is sufficient to convey full halakhic obligations and responsibilities. Since the great majority of those considered to be deaf, even those who have not developed the capacity for speech, do possess at least minimal hearing, they must be considered fully competent insofar as Jewish law is concerned on this basis alone.3<i class="footnote">R. Moses Feinstein, <i>Iggerot Mosheh, Even ha-Ezer</i>, III, no. 33, stipulates that such a person must be capable for hearing speech (even if only very loud speech) without benefit of artificial amplification. R. Ben-Zion Uziel, <i>Mishpetei Uzi’el, Even ha-Ezer</i>, I, no. 89, sec. 2, regards the ability to hear by means of artificial amplification as sufficient to remove the person from the category of <i>ḥeresh</i>.</i> Conversely, the deaf person who is capable of speech is also deemed fully responsible.4<i class="footnote">Cf., however, R. Ben-Zion Uziel, <i>Mishpetei Uzi’el, Even ha-Ezer</i>, I, no. 89, sec. 2.</i> Citing Rambam's remarks (presumably) in his commentary on the Mishnah,5<i class="footnote">I am unable to find any explicit statement by Rambam to this effect. This statement is, however, to be found in Bertinoro’s commentary on <i>Terumot</i> 1:2.</i> R. Chaim Halberstam, <i>Divrei Hayyim, Even ha-Ezer</i>, no. 72, explains that speech without hearing is empirically impossible; hence, the ability to speak is assumed by Halakhah to reflect at least minimal hearing ability.6<i class="footnote">Cf., however, <i>Kesef Mishneh, Hilkhot Mekhirah</i> 29:2.</i> R. Shlomoh Drimmer, <i>Bet Shlomoh, Oraḥ Hayyim</i>, I, no. 95, recognizes that speech may be developed in the absence of hearing on the basis of lip-reading alone. Although others disagree, as will be shown later, <i>Bet Shlomoh</i> asserts that the ability to speak, no matter how acquired and even if the speech acquired is imperfect, is yet sufficient to establish full competence in all areas of Halakhah. Thus it is the ability to engage in intellectual communication which is seen as the necessary condition of intellectual development. Similarly, it is the ability to comprehend human communication which Hobbes posits as the basis of human intelligence. As he states in chapter four of the <i>Leviathan:</i>
  When a man upon the hearing of any Speech, hath those thoughts which the words of that speech and their connexion, were ordained and constituted to signifie; Then he is said to understand it; <i>Understanding</i> being nothing else but conception caused by Speech. And therefore if Speech be peculiar to man (as for ought I know it is,) then is Understanding peculiar to him also.
  Until comparatively recent times, it was usually quite difficult to engage in meaningful communication with deaf-mutes and they were, to all intents and purposes, uneducable. At the present time, this is manifestly not so. It is recognized that the deaf who are also mute are not physically incapable of speech. Such persons possess normal vocal mechanisms, but they are incapable of developing speech by imitating sounds. Speech pathologists, audiologists and educators have developed, and now utilize, a variety of other methods in developing the faculty of speech. As has been noted, most deaf persons retain some residual auditory capacity. Sounds of speech may be communicated in amplified form either by means of hearing aids or auditory training units. Moreover, the deaf are capable of developing speech by imitating visual presentation of phonetic elements and through utilization of tactile and kinesthetic methods of stimulation. As a result, today, fortunately, there are very few deaf persons who remain totally mute. Moreover, many deaf-mutes, even those who are totally lacking in hearing and intelligible speech, have received specialized training and have taken their places as intelligent and responsible members of society. It is the status in Jewish law of such persons which requires investigation.
  The specific halakhic question which requires analysis is whether the limitations placed by Jewish law upon the responsibilities and prerogatives of deaf-mutes are categorical in nature and remain unchanged despite changing circumstances, or whether the halakhic categorization of deaf-mutes as mentally deficient is ad hoc in nature and hence does not apply to deaf-mutes who have overcome their handicap and manifest normal intelligence. The incongruity of classifying deaf-mutes who have overcome their handicap as mentally incompetent was recognized and commented upon by R. Abraham Samuel Benjamin Sofer, popularly known as <i>Ketav Sofer</i>, as early as the middle of the last century. His son, R. Simchah Bunim Sofer, <i>Shevet Sofer, Even ha-Ezer</i>, no. 21, reports that, while on a visit to Vienna, his father was invited to visit the Vienna Institute for the Deaf and Dumb.7<i class="footnote">The existence of this school was earlier reported by R. Shmuel Strashun in his commentary on <i>Gittin</i> 71a.</i> Rabbi Sofer was greatly astonished at the accomplishments of the pupils he observed and remarked that he was in doubt as to whether the exclusion of deaf-mutes from halakhic responsibility was applicable to persons who had been trained in such a manner. <i>Shevet Sofer</i> further reports that he "thinks" his father told him that he had requested that the students of the Institute be provided with <i>tefillin</i> for regular use.8<i class="footnote">See also R. Jonathan Steif, <i>Teshuvot Mahari Shteif</i>, no. 239.</i> This would indicate that <i>Ketav Sofer</i> was of the opinion that performance of <i>mizvot</i> was incumbent upon those students despite their disability. Sentiments similar to those recorded by <i>Shevet Sofer</i> are expressed by R. Ya'akov Hagiz, <i>Halakhot Ketanot</i>, II, no. 38, who remarks that, nonetheless, he hesitates to rule in accordance with his instinctive feeling because in rabbinic literature restrictions applying to deaf-mutes are stated categorically without provision for exception. The late Chief Rabbi of Israel, Rabbi Isaac ha-Levi Herzog, <i>Heikhal Yizḥak, Even ha-Ezer</i>, II, no. 47, similarly states, "… as a result of this education which was non-existent in the days of the Sages, [the <i>ḥeresh</i>] has exited from the category of the mentally deficient; at the very minimum [the matter] is doubtful." R. Shlomoh Zalman Auerbach and R. Chaim Pinchas Scheinberg, in items appearing in the Elul 5742 issue of <i>Moriah</i>, express an identical view but similarly hesitate to issue a definitive ruling.
  The leading exponent of the position that classification of true deaf-mutes as legally incompetent is categorical insofar as Jewish law is concerned is R. Menachem Mendel Krochmal of Nikolsburg (1600-1661), author of <i>Teshuvot Ẓemaḥ Ẓedek</i> (not to be confused with R. Menachem Mendel Schneersohn (1789-1866), also author of a responsa collection entitled <i>Ẓemaḥ Ẓedek). Ẓemaḥ Ẓedek</i>, no. 77, describes two different deaf-mutes each of whom was a highly skilled tailor. One is described as a successful businessman and a consummate litigant as well; the other is described as literate and proficient in the use of the prayer book and in the order of the various prayers for the Sabbath and Festivals, as well as of the daily services. Despite the fact that both were highly intelligent individuals, <i>Ẓemaḥ Ẓedek</i> ruled that the provisions of Jewish law applying to deaf-mutes extended to them as well. As explained by subsequent writers, this position is based primarily upon a statement which appears in <i>Gittin</i> 71a to the effect that a deaf-mute is considered legally incompetent even though he is capable of communication by means of the written word. Since such communications, no matter how rational, are not accepted as evidence of mental competence, concludes <i>Zemaḥ Ẓedek</i>, it may be inferred that no individual deaf-mute, no matter how clever he may be, is considered legally competent. The principle is that the law provides for no distinction between various deaf-mutes. This is also the position of a number of other authorities including <i>Pri Megadim</i>, introduction to Oraḥ Hayyim, chap. 2, sec. 3; <i>Divrei Hayyim</i>, II, <i>Even ha-Ezer</i>, no. 72; <i>Halakhah le-Mosheh</i>, no. 262; <i>Maharam Schick</i>, I, <i>Even ha-Ezer</i>, no. 79; <i>Divrei Hayyim</i>, II, <i>Even ha-Ezer</i>, no. 72; <i>Maharsham</i>, II, no. 140; <i>Bet Shlomoh, Oraḥ Hayyim</i>, no. 95; R. Abraham Wolf Hamburg, <i>Sha'ar ha-Zekenim</i>, II, 135; R. Shimon Bamberger, <i>Teshuvot Zekher Simḥah</i>, no. 9; and <i>Divrei Malki'el</i>, VI, no. 35. However, as will be shown, there is strong reason to argue that such preeminent authorities as Rambam and Bertinoro adopt the opposite view.
  The question of whether the classification of a deaf-mute as legally incompetent is absolute in nature or whether this classification admits of exceptions should logically be resolvable on the basis of the provisions of Halakhah with regard to the status of a person who is normal at birth but who becomes a deaf-mute as a result of disease or traumatic injury subsequent to having acquired speech. The rationale underlying the special status of deaf-mutes, viz., that since they lack the ability to communicate they are incapable of normal mental development, is not applicable in the case of one who has matured mentally before becoming a deaf-mute. However, if this legal classification is categorical in nature, admitting of no exception, the halakhic provisions governing deaf-mutes may well extend even to the normal person who subsequently becomes a deaf-mute. In point of fact, the status of a normal person who subsequently becomes a deaf-mute is the subject of controversy among halakhic authorities. <i>Baḥ, Yoreh De'ah</i>, I; <i>Shakh, Yoreh De'ah</i> I:22; and <i>Divrei Hayyim</i>, II, <i>Even ha-Ezer</i>, no. 72, consider the status of such persons to be identical with that of congenital deaf-mutes. This would indicate that the applicable provisions of Jewish law are categorical in nature and do not admit of exceptions in cases of manifest intelligence. However, two earlier authorities, Rambam and Bertinoro, in their respective commentaries on the Mishnah, <i>Terumot</i> I:2, indicate that such persons are <i>not</i> regarded by Halakhah as legally incompetent.9<i class="footnote">Cf., however, <i>Shevet Sofer, Even ha-Ezer</i>, no. 21 and R. Ezekiel Cheifets, <i>Melekhet Ḥeresh</i>, Introduction, sec. 9.</i> <i>Pri Megadim</i>, in the introduction to his commentary on Oraḥ Hayyim, chap. 2, sec. 5, opines that such deaf-mutes must be considered to be in the category of <i>safek</i> and accorded doubtful status. The doubt expressed by <i>Ketav Sofer</i> with regard to the status of obviously intelligent deaf-mutes can readily be comprehended within the context of this disagreement.10<i class="footnote">See also Rabbi Ephraim Oshry, <i>She’elot u-Teshuvot mi-Ma‘amakim</i>, III, no. 2.</i> Most later authorities, including R. Menachem Mendel Schneersohn (1789-1866), <i>Ẓemaḥ Ẓedek, Even ha-Ezer</i>, no. 35, sec. I; <i>Melekhet Heresh</i>, Introduction, sec. 9; <i>Keren le-David, Oraḥ Hayyim</i>, no. <i>27; Mishpetei Uzi'el, Even ha-Ezer</i>, I, no. 89, sec. 2, as well as a number of other authorities whose opinions are recorded by <i>Sedei Hemed, Helek ha-Klalim, ma'arekhet ha-ḥet</i>, reject any distinction between a congenital deaf-mute and one who becomes a deaf-mute as a result of injury or illness.11<i class="footnote">Cf., however, <i>Heikhal Yiẓḥak</i>, II, no. 47.</i>
  Although the status of an educated and intelligent deaf-mute is the subject of doubt, there exists at least one authority who maintains that this doubt does not extend to the question of including such a person as part of a <i>minyan</i> required for public prayer. Although <i>Zekher Simḥah</i>, no. 9, disagrees, R. Wolf Breuer, <i>Naḥalat Binyamin</i>, no. 31, rules that a deaf-mute who understands the nature of prayer may be included in the requisite quorum of ten without question.12<i class="footnote">Inability to hear or to make the appropriate responses does not in itself disqualify a person for inclusion in a <i>minyan</i>. See <i>Teshuvot Maharil</i>, no. 150; cf., <i>Pri Ḥadash, Oraḥ Ḥayyim</i> 55:8.</i> This position was subsequently endorsed by <i>Ḳeren le-David, Oraḥ Hayyim</i>, no. 27.13<i class="footnote">R. Ovadiah Yosef, <i>Or Torah</i>, Elul 5737, also agrees, but opines that in such situations the reader should omit the repetition of the <i>shemoneh esreh</i>. Cf., R. Moses Feinstein, <i>Iggerot Mosheh, Oraḥ Ḥayyim</i>, II, no. 18.</i>
  Even according to the authorities who maintain that the classification of deaf-mutes as legally incompetent does not admit of exception, there is one aspect of the training given to deaf-mutes in contemporary society which does affect their halakhic status. As stated earlier, a person who possesses speech is legally competent in every way, although he may be deaf. The question of whether the speech acquired by deaf-mutes affects their status in Halakhah is discussed in a variety of sources. At least one authority, <i>Ne'ot Desha</i>, no. 132, states unequivocally that the imperfect, guttural speech of a deaf-mute does not qualify as speech for purposes of effecting a change in the person's status. The argument advanced by this authority is that such barely intelligible speech is, for legal purposes, no more to be considered speech than is communication through the written word.14<i class="footnote">See also R. Isaac Dov Bamberger, <i>Yad ha-Levi, Even ha-Ezer</i>, no. 60.</i> Maharam Schick, in his earlier cited responsum, expresses doubt with regard to the question of whether "artificially" acquired speech is sufficient to remove the person from the category of a deaf-mute. This doubt is echoed by R. Eliezer David Greenwald, <i>Keren le-David, Oraḥ Hayyim</i>, no. 27 and R. Malki'el Zevi Tennenbaum, <i>Divrei Malki'el</i>, VI, no. 35.
  However, there exist a host of other authorities, some far more prominent, who are unequivocal in their view that one who has aquired speech by any means whatsoever cannot be considered a deaf-mute. Their position is that the ability to speak, albeit imperfectly, is a greater indicator of intelligence than the ability to communicate in writing. This is clearly the position of R. Shalom Mordecai Schwadron, <i>Teshuvot Maharsham</i>, II, no. 140, who permitted a deaf-mute who had acquired the ability to speak to perform <i>ḥalizah</i>, even though his speech was unclear. Similarly, R. Chaim Halberstam, <i>Divrei Hayyim</i>, II, <i>Even ha-Ezer</i>, no. 72, and R. Shlomoh Drimmer, <i>Bet Shlomoh, Oraḥ Hayyim</i>, no. 94, deem a deaf-mute who has learned to speak to be legally competent even though his speech is understood only with difficulty. Similarly, R. Ezriel Hildesheimer, <i>Teshuvot Rabbi Ezri'el, Even ha-Ezer</i>, no. 58, rules that a <i>ḥeresh</i> who has acquired the ability to speak and who manifests normal intelligence is to be considered legally competent. R. Ya'akov Emden, in his commentary on the <i>Siddur, Hilkhot Kri'at ha-Torah</i>, sec. 20, permits such a person to be called to the reading of the Torah.15<i class="footnote">See also Rabbi Aryeh Leib Grossnass, <i>Teshuvot Lev Aryeh</i>, II, no. 1, originally published (Nisan 5732) as a monograph which appeared as no. 1 in a series of responsa published by the London <i>Bet Din</i>. <i>Keren le-David, Oraḥ Ḥayyim</i>, no. 27, disagrees with the ruling of R. Ya‘akov Emden, arguing that since the person in question cannot pronounce the words properly, he may not pronounce the blessings upon the Torah on behalf of the assemblage. This is also the position of R. Shlomoh Zalman Auerbach, <i>Moriah</i>, Elul 5742.</i> It would also appear that the position of R. Moses Feinstein, <i>Iggerot Mosheh, Even ha-Ezer</i>, III, no. 33, is that one who has acquired speech, no matter by what means, cannot be considered to be a deaf-mute.16<i class="footnote">Rabbi Ovadiah Yosef, <i>Or Torah</i>, Elul 5737, rules that when a <i>ḥeresh</i> who has acquired speech completes the quorum for a <i>minyan</i> communal prayer may be offered including recitation of <i>kaddish</i> and <i>kedushah</i>. He advises, however, that, in the light of conflicting views with regard to this matter, the reader should not repeat the <i>amidah</i>, but rather recite the opening section, including <i>kedushah</i>, together with the congregation. Cf., <i>Iggerot Mosheh, Oraḥ Ḥayyim</i>, II, no. 18 and <i>Zekher Simḥah</i>, no. 9.</i> An identical view is expressed by R. Shlomoh Zalman Auerbach and by R. Chaim Pinchas Scheinberg, <i>Moriah</i>, Elul 5742. Rabbi Auerbach reports that this is the opinion of R. Joseph Eliashiv as well.
  In conclusion, those who possess even minimal hearing or have acquired intelligible speech are certainly not subject to any of the halakhic restrictions which apply to deaf-mutes. Furthermore, there is a highly significant body of rabbinic thought which deems even one who has acquired barely intelligible speech to be beyond the category of the rabbinic deaf-mute. Moreover, in the light of the degree of education attained even by true deaf-mutes in contemporary society, it is doubtful that they are to be considered examples of the <i>ḥeresh</i> described in rabbinic references. Hence, they should be encouraged, and indeed required, to participate fully in Jewish religious life, including performance of all ritual obligations as well as in Torah study.
  In view of the remarkable strides made in educating the deaf, it is certainly incumbent upon the Jewish community to provide them with every opportunity for instruction and study in all areas of Jewish knowledge. They are to be encouraged to participate fully in all areas of communal and religious life.
  
  Chapter XIX Hetter Iska
  
  <i>Whosoever has funds and lends them without interest, of him Scripture says, "He who lends not his money at interest… whoever does these shall forever not falter" (Psalms 15:5).</i>
  BABA MEZI'A 71a
  Promissory Loans
  Biblical law forbids both exaction of interest by a creditor and payment of interest by a debtor. The underlying considerations are two-fold in nature: 1) the obligation to perform charitable deeds includes a responsibility to help the indigent by means of non-interest bearing provident loans. 2) Interest accepted in return for extending a loan involving neither risk of capital nor personal service is perceived as a form of unjust enrichment.
  Although in biblical days the economic structure of society was predominantly agrarian and loans were sought primarily for personal purposes, the strictures against usury apply with equal force to loans extended for commercial purposes. During the Middle Ages, Jews, particularly when they were forbidden to own land, turned to commercial pursuits. Frequently, they became merchants engaged in the buying and selling of goods and produce. Such pursuits required capital investment of sums which few individual Jews possessed. In a contribution to the 5737 issue of <i>Torah she-be-'al Peh</i>, Rabbi Shiloh Raphael examines the devices which arose as a means of facilitating commercial endeavors without violation of either the letter or the spirit of Jewish law and explores their applicability to contemporary commercial transactions.
  The earliest attempt to overcome these difficulties was that of the 16th-century Polish scholar known as R. Mendel Avigdors of Cracow, who composed the earliest version of the <i>hetter iska</i>. The <i>hetter iska</i> is a document which specifies the terms and conditions under which money is advanced by one individual to another. Its legal purpose is to create a partnership arrangement as distinct from a debtor-creditor relationship.
  The formula of the original <i>hetter iska</i> was based upon a ruling recorded in Shulḥan Arukh, Yoreh De'ah 167:1 which provides that funds may be advanced on the condition that the recipient use the funds to buy and sell merchandise on behalf of the person advancing the funds until such time as a stipulated profit has been earned; profit over and above that amount then accrues without limit to the recipient. The sum advanced in this manner is termed "half loan, half deposit" in rabbinic literature. During the initial period the recipient acts solely as a commercial agent on behalf of the principal who advances the funds; only after the originally stipulated profit has been earned does the deposit revert to the status of a loan and the recipient, who was heretofore considered a bailee, becomes a debtor. Subsequently, no profit whatsoever accrues to the lender and hence there is no question of forbidden payment of interest. The text incorporating this formula, which was drawn up by R. Mendel Avigdors for use in lieu of a promissory note, appears in <i>Naḥalat Shiv'ah</i>, no. 40, and is known as the "<i>Hetter Iska</i> of Maharam."
  The Ga'on of Vilna, Bi'ur haGra, Yoreh De'ah 167:1, expresses amazement at <i>Shulḥan Arukh</i>'s ruling that money may be lent in this manner.In the situation which is outlined, the "agent" undertakes to engage in the purchase and sale of merchandise on behalf of the "principal." However, his sole motivation for doing so is the stipulated agreement between the parties to the effect that the sum advanced will subsequently be available for his own personal use as a loan. Labor or personal services performed on behalf of a creditor as an inducement to extend a loan is a form of interest forbidden by Jewish law. Performance of such services without compensation is, in fact, a disguised interest premium as a precondition for receiving the loan. It is for this reason that <i>Shulḥan Arukh</i> stipulates that the "agent" must be paid for his services, although the payment may be nominal in nature.
  In terms of making capital available for commercial purposes, an obvious deficiency with regard to this arrangement is that the "interest" received by the lender is not tied to the period of time his capital is used by the borrower and does not provide for accrual of additional interest in the event that repayment is delayed. Subsequently, a modified form of the <i>hetter iska</i> was developed which had the effect of eliminating this difficulty.1<i class="footnote">See <i>Ginat Veradim, Yoreh De‘ah, klal</i> 7, no. 4.</i> Under the terms of this modified <i>hetter iska</i> the recipient accepts fifty percent of the funds as a deposit and fifty percent as a loan. Any expenditure of a commercial or investment nature is deemed to be a joint return in which both parties share equally. Thus, technically, half the profits accrue to the "principal" and half to the borrower. The principal may, of course, agree to accept no more than a certain stipulated amount of the profits and the agent may demand that the agreement specify that profits exceeding that amount accrue to the agent as compensation for his services.
  In neither of these formulations is the <i>hetter iska</i> a subterfuge or legal fiction. The determining characteristic which distinguishes a loan from a deposit is that a debtor must always repay the full amount borrowed, regardless of any losses he may suffer, while the laws of bailment provide that the bailee need not indemnify the bailor in the event of certain types of losses. Since the <i>hetter iska</i> generates a principal-agent relationship, no payment need be made if bona fide losses occur while the borrower functions as a bailee. Under the terms of Maharam's formula there is no obligation whatsoever on the part of the recipient if the loss is sustained during the initial period; according to the modified version such losses are borne equally by the "principal" and the "borrower." The "principal" may, however, set forth certain stipulations to protect himself against loss. He may, for example, stipulate that the agent must bear all losses unless the merchandise purchased is under the latter's personal supervision at all times or unless the agent can produce two trustworthy witnesses who testify that he has indeed properly discharged all aspects of his trust. R. Israel Isserlin, <i>Terumat ha-Deshen</i>, no. 302, states that the creditor may even stipulate that only the testimony of the rabbi and the cantor of the community will be acceptable, despite the fact that such a condition is, in practice, almost impossible to fulfill.
  Conditions such as these serve to protect the capital of the creditor, but do not at all guarantee the payment of "interest" in the event that the debtor denies that he has earned a profit. This drawback was overcome by means of a further stipulation providing that the "principal" may assume that a profit has been earned and that this presumption may be nullified only upon the solemn oath of the "agent" to the contrary. Since, in general, pious Jews abjure oaths, even when called upon to swear to matters which are entirely true, the net effect of a stipulation of this nature is to assure that the creditor will receive "interest" in the form of a guaranteed "profit" even if, in fact, no profit has been earned in any commercial endeavor. Whether or not such an oath may be demanded when the "principal" has personal knowledge of the truth of the "agent's" claim that no profit has been earned is a matter of some dispute. Some authorities assert that an oath attesting to facts already known by the party demanding the oath is forbidden as an oath taken "in vain," i.e., to no purpose. Of course, if an oath cannot be exacted, payment in lieu of the oath cannot be demanded.2<i class="footnote"><i>Teshuvot Shai</i>, I, no. 3; <i>Panim Me’irot</i>, II, no. 3; <i>Divrei Ḥayyim</i>, II, <i>hashmat-tot</i>, no. 16; and <i>Iggerot Mosheh, Yoreh De‘ah</i>, II, nos. 62 and 63, maintain that such an oath cannot be demanded. However, <i>Teshuvot Maharshag, Yoreh De‘ah</i>, no. 4, disagrees.</i>
  The <i>hetter iska</i> was originally designed to facilitate the lending of capital for commercial purposes. Since the capital was, in fact, invested in mercantile enterprises, and since the creditor assumed a measure of risk, the relationship which was formed was—factually as well as technically—that of partners in a business venture. However, with the passage of time, use of the <i>hetter iska</i> became more and more widespread. Greater and greater numbers of Jews earned their livelihood as craftsmen or as hired laborers. The use of a <i>hetter iska</i> by a person who is not in any way engaged in a business enterprise appears to be nothing more than a subterfuge. Rabbi Raphael fails to note that Rabbi Moshe Feinstein, <i>Iggerot Mosheh, Yoreh De'ah</i>, II, no. 62, totally ignoring earlier responsa dealing with this problem, does indeed state that the <i>hetter iska</i> may be employed only when the borrower is engaged in business ventures. Moreover, declares Rabbi Feinstein, both parties must know the nature of the commercial venture for which the money is advanced for "it [the <i>hetter iska</i>] is not an incantation or charm." In <i>Iggerot Mosheh, Yoreh De'ah</i>, II, no. 63, Rabbi Feinstein adds that the written agreement should state that the money advanced must be used for ventures in which it may reasonably be anticipated that the profit will be at least twice the amount of the stipulated "interest." Thus, according to <i>Iggerot Mosheh</i>, the <i>hetter iska</i> is reserved for use in situations in which the interest paid is, in reality, no more than the actual anticipated profit realized on the portion of the merchandise acquired on behalf of the creditor.
  The question of the efficacy of the <i>hetter iska</i> in conjunction with non-commercial loans was raised earlier, at approximately the turn of the century, and discussed in detail by Rabbi Shalom Mordecai Schwadron, <i>Teshuvot Maharsham</i>, II, no. 216. Advancing a view contrary to that of <i>Iggerot Mosheh</i>, Rabbi Schwadron justifies the use of a <i>hetter iska</i> in conjunction with loans which are entirely of a personal nature. He concedes that when the funds have not been used for commercial purposes, and no profits have been earned, no interest need be paid. The borrower, however, certainly has the option of using the money advanced for such purposes; indeed, that is the <i>prima facie</i> purpose of the loan as stated in the written agreement. Under the terms of the agreement the lender may demand a solemn oath that the money has not been used to generate profit and that, in fact, no profit has been earned. The amount stipulated as "interest" is then paid by the debtor solely as a means of avoiding the oath which he is otherwise bound to swear.
  R. Joseph Saul Nathanson, <i>Teshuvot Sho'el u-Meshiv, Mahadurah Kamma</i>, III, no. 160, justifies an <i>iska</i> arrangement in conjunction with personal loans, for at least some purposes, on entirely different grounds. According to this authority, a loan which makes it possible for an individual to continue practising his profession or to retain his income-generating employment is to be deemed a commercial enterprise. Therefore, according to <i>Sho'el u-Meshiv</i>, a teacher who is burdened by debt or by personal expenses may borrow funds under an <i>iska</i> arrangement if failure to receive the loan would force him to abandon his profession and to seek a livelihood in some potentially more lucrative endeavor. Since the loan enables him to continue in his occupation, the loan constitutes a form of <i>iska</i> in which the financier becomes a partner. The application of this line of reasoning to student loans designed to enable the student to pursue studies which will qualify him to enter a profession or to make him eligible for higher salaried employment is obvious.
  In another responsum, <i>Sho'el u-Meshiv, Mahadurah Telita'ah</i>, I, no. 133, Rabbi Nathanson sanctions an <i>iska</i> arrangement in order to enable the recipient to repay a debt and thereby to avert the forced sale of his home. This is categorized as an <i>iska</i> by <i>Sho'el u-Meshiv</i> by virtue of prevention of loss of capital in the sale of the house and avoidance of financial expenditure in the form of rental expenses.
  The permissive views of <i>Sho'el u-Meshiv</i> are sharply disputed by R. Meir Arak, <i>Teshuvot Imrei Yosher</i>, I, no. 108. <i>Imrei Yosher</i> maintains that the concept of <i>iska</i> is limited to profits realized from the investment of capital advanced or from sale of merchandise or goods acquired with such capital. Profits realized from avoidance of loss or from income derived from personal employment do not constitute a joint venture and, hence, according to <i>Imrei Yosher</i>, do not justify use of a <i>hetter iska</i>. This latter view is consistent with the position of most authorities including <i>Ginat Veradim, Yoreh De'ah, klal</i> 6, no. 4; <i>Shulḥan Arukh ha-Rav, Hilkhot Ribbit</i>, sec. 42; <i>Kizur Shulḥan Arukh</i> 66:10; and <i>Erekh Shai</i> 177:7.
  Rabbi Moshe Sternbuch, <i>Mo'adim u-Zemanim</i>, VI, no. 41, points out that with widespread investment in the stock market on the part of small investors there can be no question with regard to the creditor's lack of personal knowledge that no profit has been earned. Indeed, it is not uncommon for individuals who borrow money for personal purposes to use such funds in an attempt to reap short term profits in the securities market. Since the creditor cannot know that this has not, in fact, occurred, he may, according to all authorities, stipulate that an oath be sworn to that effect.
  Rabbi Raphael notes that, in our day, an aversion to oath-taking is no longer to be taken for granted. Understandably, there may, therefore, be a reluctance on the part of some persons to utilize the customary <i>hetter iska</i>. The lender may well anticipate a contingency in which the borrower will indeed swear quite truthfully that he has earned no profit. Rabbi Raphael suggests that the requirement for an oath on the part of the debtor be replaced with a stipulation giving the creditor the right to examine the financial records of the debtor and the right to participate in all decisions with regard to expenditure of the sum advanced. The agreement between the parties would provide that this right be abrogated upon payment of a specified sum or percentage of the capital at the discretion of the debtor.
  As has been explained earlier, the <i>hetter iska</i> constitutes a device which is in full conformity with Jewish law. The <i>hetter iska</i> has also been recognized by the civil courts as an instrument creating a bona fide partnership interest providing for a limited return upon an investment rather than as a loan instrument requiring payment of interest on borrowed funds. In <i>Leibovici</i> v. <i>Rawicki</i>, 57 Misc.2d 141, 290 N.Y.S.2d 997 (Civ. Ct., 1968), the court upheld the legality of a <i>hetter iska</i> which provided a return greater than was permitted by usury laws in effect at that time. In this decision, the court specifically denied the plea that the agreement was merely a disguised loan and constituted a subterfuge to avoid the taint of usury. In a number of cases, the courts have ruled explicitly that payment of a portion of profits in lieu of interest with no guarantee of profit is not usury.3<i class="footnote">See <i>Clift</i> v. <i>Barrow</i>, 108 N.Y. 187, 192-194, 15 N.E. 327, 328-330 (1888); and <i>Mueller</i> v. <i>Brennan</i>, 68 N.Y.S. 2d 517 (Sup. Ct., 1947).</i> In <i>Leibovici</i> v. <i>Rawicki</i> the court recognized that a <i>hetter iska</i> constitutes an agreement of precisely this nature.
  A sample draft of a <i>hetter iska</i> agreement in English is appended to this chapter.
  Mortgage Loans
  A mortgage loan in which the seller accepts a purchase mortgage representing all or part of the purchase price does not lend itself to use of a usual <i>hetter iska</i>. Since no cash is actually advanced by the seller to the purchaser, the purchaser has no opportunity to realize a profit from the investment of such funds. Accordingly, the seller has no reason to demand an oath to that effect and no right to accept a stipulated sum in lieu of an oath. Of course, if it may reasonably be anticipated that the market value of the real estate will rise, a partnership agreement might be drafted which would provide for a specified rate of return in lieu of payment of a partnership share of the actual increment in value. However, in the event that the value of the real estate does not rise and no "profit" is realized, acceptance of "interest" in lieu of profits poses a halakhic problem. It may be argued that if real estate values are a matter of common knowledge, there is really no basis to demand an oath to that effect and hence no right to accept monetary payment in lieu of an oath.
  There does, however, exist an entirely different and relatively simple expedient which serves to obviate the prohibition against the taking of interest in conjunction with mortgage loans. This procedure is as follows: Title to a portion of the property directly commensurate in value with the principal of the mortgage is vested in the lender. It is then stipulated that the sum required as interest be paid to the "lender" as rent for use of the portion of the property which belongs to him. Payments which serve to reduce the principal are deemed to represent payment for acquisition of title to a share in the property in direct proportion to the amount paid. Subsequent "interest" payments are reduced because "rent" is paid only on the diminished portion vested in the lender.
  There is, however, one serious drawback with regard to an arrangement of this nature. Under the terms of a conventional mortgage loan, should the mortgagor default in payment of monthly installments the property may be foreclosed and seized by the mortgagee. However, the agreement here described creates a situation in which the purchaser and seller share a partnership interest in the property. Hence, if the purchaser should default in his payment of a monthly installment and the property be foreclosed the proceeds of the foreclosure would perforce be divided in accordance with the respective partnership interests of the purchaser and the seller. This result would presumably be unacceptable to most persons contemplating the sale of real estate on terms involving deferred payment.
  This problem may, however, be remedied by modifying the agreement to provide solely for regular payments of rent for a set period of time. These rental payments would be set at a sum equal to the amount which would represent the periodic payment of both interest and principal in a conventional mortgage loan. The agreement would further provide that, upon expiration of a stipulated time-period, title pass to the leaseholder without further payment, or upon payment of a nominal sum, provided that all financial obligations have been satisfied.
  In the event of default in payment of the "rent" the mortgagee-lessor would be entitled to terminate the lease as is the case in any landlord-tenant relationship. In this way the mortgagee-lessor would regain title and possession of the entire property.
  It is readily perceived that, for a variety of legal considerations pertaining to real estate taxes, insurance coverage, etc., it is desirable that title be vested in the lessee-purchaser, just as under a standard mortgage agreement title is vested in the mortgagor. This may be accomplished under the terms of a leasehold agreement as well. It should be emphasized that such a procedure is entirely legal. The lessee-purchaser may be designated as the owner of record even though, in fact, the agreement provides that title is retained by the lessor-seller. The lessee-purchaser is, in effect, the nominee of the lessor-seller and the agreement between the parties to this effect is entirely valid even though it is not reflected in ownership of record.
  A further problem which must be addressed is the question of interest deduction for purposes of income tax liability. Ordinarily, interest payments on leases and mortgages are deductible from income, while rental payments are not. It might seem that under the provisions of an agreement of this nature the purchaser forfeits the income tax deduction which he would enjoy under the provisions of a mortgage loan. However, on the basis of a number of court decisions as well as Internal Revenue Service regulations which are presently in effect, it would appear that the purchaser-lessee is fully entitled to deduct any "rental" payment made in lieu of interest which would have been paid under the terms of a conventional mortgage loan.
  In an early case, <i>Dorzbach</i> v. <i>Collison</i>, 195 F.2d 69 (3rd Cir. 1952), bearing directly upon this question, a federal court ruled that a deduction must be allowed for payment of a percentage of net profits in lieu of interest. The proprietor of a clothing store had borrowed money from a bank but, when pressed for payment, was unable to satisfy the debt. The proprietor's wife was substituted as creditor under an agreement which provided that the proprietor would pay his wife 25% of the net profits of his clothing store business "in lieu of interest" on monies loaned to him. The court ruled that such payments are deductible as interest.
  In another case, <i>Arthur R. Jones Syndicate</i> v. <i>Commissioner of Internal Revenue</i>, 23 F.2d 833 (7th Cir. 1927), the Circuit Court of Appeals ruled that "interest, regardless of the name by which it is called, may be deducted by the taxpayer from its income." This case involved an arrangement designed to circumvent an Illinois usury statute. Instead of entering into a loan agreement providing for payment of 14% interest, the parties agreed that preferred stock be issued which was to be redeemable at par and which would bear a dividend of 14% per annum regardless of earnings. The court held that such "dividends" are deductible as interest.
  Reference should also be made to a more recent case, <i>Oesterreich</i> v. <i>Commissioner of Internal Revenue</i>, 226 F.2d 798 (9th Cir. 1955), which deals with a different but related matter. In <i>Oesterreich</i> the court held that an agreement providing for payment of "rent" for a stipulated number of years and conveyance of real estate thereafter for a nominal sum was in reality a contract for sale of land even though it was entitled a "lease" and, for tax purposes, should be treated as a sale rather than as a lease. This ruling was later reaffirmed in <i>Estate of Hedrick</i> v. <i>Commissioner of Internal Revenue</i>, 406 F.2d 587 (9th Cir. 1969), in subsequent litigation growing out of the same transaction.
  These determinations are reflected in I.R.S. Tax Regulations 26 CFR §1.163-1 and §1.483-1 which provide that payments readily construed as interest are to be considered as such even though they are not formally designated as interest.
  In order to eliminate any doubt it is advisable to include a section in the preamble to the leasehold agreement stating that the transaction is executed in this manner rather than in the form of a mortgage loan because of a desire to avoid the usury strictures of Jewish law. This should serve to demonstrate beyond cavil that the "rental" payments are indeed "in lieu of interest."
  
  Appendices
  
  A sample draft of a <i>hetter iska</i> and of a leasehold agreement incorporating the salient points of this discussion are presented below. The purpose of providing these forms is to make available a sample form which may be used freely by parties entering into such agreements.
  In the case of the <i>hetter iska</i>, publication of this form serves another purpose as well. With publication of the <i>hetter iska</i> form in this volume the text need not be reproduced in its entirety in every <i>hetter iska</i> agreement. Henceforth, the manifold provisions contained in this form may be incorporated by reference and made an integral part of any loan agreement. A standard loan form may be used provided that the word "interest" is eliminated wherever it may occur and the word "dividend" or "return" substituted in its stead and provided that the following clause is inserted:
  The parties to this agreement desire to comply fully with the provisions of Jewish law prohibiting payment and acceptance of interest and for this purpose agree that the terms of this agreement shall be made subject to the terms of a <i>HETTER ISKA</i> as provided in the form set forth in <i>Contemporary Halakhic Problems</i>, II, 386–388. All provisions of said <i>HETTER ISKA</i> form shall be incorporated and made part of this agreement as if fully set forth herein.
  
  Appendix A Shetar Hetter Iska
  
  Agreement made this ________day_____________of________by and between__________________________hereafter known as party of the first part and________________________________hereafter known as party of the second part.
  Whereas the party of the second part, is desirous of engaging in a commercial enterprise and/or in the acquisition of bonds and securities and whereas he lacks sufficient personal funds for this purpose, and
  Whereas the party of the first part is desirous of granting a loan to the party of the second part for this purpose, and
  Whereas the party of the first part is desirous of engaging in a similar commercial enterprise and/or acquisition of bonds and securities, and
  Whereas, as Jews, both parties are bound by religious prohibitions against usury which prevent them from seeking or granting an interest-bearing loan,
  NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
  1. The party of the second part hereby acknowledges receipt of the sum of__________________from party of the first part.2. The party of the second part has accepted the sum of _______________representing 50% of the total sum received from the party of the first part to be held and invested together with all fruits thereof on behalf of the party of the first part.3. The party of the second part shall invest this sum and all fruits thereof in a prudent and advantageous manner on behalf of the party of the first part in real estate, merchandise, commercial paper, stock, bonds, commodities or other lawful venture, provided that opportunity for lawful and prudent investment presents itself. Title to all objects of value acquired in this manner and of all fruits thereof shall be vested in the party of the first part.4. The party of the second part has accepted the sum of ______________representing 50% of the total sum transferred to him as an interest-free loan. The party of the second part shall have the right to co-mingle his funds with those accepted on behalf of the party of the first part to the extent that the party of the second part and the party of the first part each shall have equal proprietary interest in any purchase or investment.5. The party of the second part hereby obligates himself to utilize the funds transferred. Any purchase of a mercantile nature or investment made by the party of the second part, up to the limit of the sum transferred, shall be deemed to have been made with these funds.6. The party of the second part shall receive from the party of the first part the sum of $1 per month until the termination of this agreement as compensation for his services as agent of the party of the first part.7. All remaining profits shall be divided equally between the parties. All losses shall be borne equally by both parties.8. The party of the second part shall be obligated to place any unexpended funds in a safe-deposit box in a chartered commercial bank and to maintain any merchandise, stock certificates or bonds acquired with these funds in his personal possession at all times. The party of the second part obligates himself to indemnify the party of the first part for any losses sustained as a result of failure meticulously to discharge this obligation. Fulfillment of this obligation is to be substantiated only on the basis of the testimony of two persons qualified to offer testimony. Such qualification is to be understood as meaning qualification in accordance with Jewish law as recorded in Shulḥan Arukh, Hoshen Mishpat.9. In the event of financial loss, the burden of proof shall be upon the party of the second part to consist solely of the testimony of two qualified witnesses as stipulated in the previous paragraph.10. The party of the second part anticipates realization of a net profit of at least [20%]*<i class="footnote">* This figure should be equal to twice the stipulated return on the money advanced as provided in the final sentence of this paragraph. The party of the second part anticipates this rate of return both on the portion of the funds borrowed by himself and invested on his own account as well as on the portion invested on behalf of the party of the first part. Thus, in order to realize a profit of 10% on the entire sum transferred, the anticipated return must be 20%. This is so because the party advancing the funds is entitled to profits only on one half of the total sum advanced, i.e., that portion which represents his own investment.</i> per annum of the funds held in this manner after deduction of all expenses including compensation of the party of the second part for services as agent. However, the declaration of the party of the second part with regard to the extent of profit, or the absence thereof, shall be accepted only upon administration of a solemn oath before a rabbinic tribunal. Party of the first part hereby agrees to forgive any and all further claims against the party of the second part upon payment of a sum equal to [10%] per annum of the sum transferred in addition to return of the sum transferred.11. The party of the second part agrees to return the funds accepted under this agreement in _______________ equal installments payable on the______________of each month of the civil calendar. An accounting and payment of any and all profits as provided in the previous paragraph shall be made at the same time.12. In the event of failure to return any portion of the funds in accordance with the previous section by reason of loss or of non-realization and non-payment of the anticipated profit as stipulated in paragraph 10 the entire sum advanced under the terms of this agreement shall be due and collectible.13. In the event of any controversy arising out of, or related to, this agreement the same shall be submitted to binding arbitration in accordance with Jewish law by a tripartite panel of qualified rabbis versed in such law. Each party shall be entitled to appoint one member of this panel; the two members appointed in this manner shall appoint the third member of the panel. The award by a majority of such panel shall be confirmed in any court of competent jurisdiction pursuant to the CPLR without any right of appeal therefrom. An action shall be brought before a civil court only in the event of failure of one of the parties to appear before a rabbinic tribunal and only upon leave from a rabbinic tribunal.
  Made in the Borough of Manhattan, City and State of New York on the date aforesaid.
  WITNESS
  Name:
  Address:
  WITNESS
  Name:
  Address:
  
  Appendix B Leasehold Agreement
  
  Agreement made this __________ day of _______________ by and between ____________________________ hereafter known as LESSOR and ____________________ hereafter known as LESSEE.
  Whereas the LESSOR is desirous of conveying his right title and interest in the property known as , a parcel located on the side of , distant  feet from the intersection of  and  feet and  inches by  feet  inches, and
  Whereas the LESSEE lacks sufficient capital to render payment in full in exchange for unencumbered title to said property, and
  Whereas, as Jews, both parties are bound by religious prohibitions against usury which prevent the execution of an interest-bearing purchase mortgage,
  NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
  1. The parties hereby enter into a leasehold agreement for a period of ___________ years commencing on the 1st day of ___________ and ending on the _____________ day of _____________.2. This lease shall be a net-lease and the LESSEE shall have the full rights of possession of the house and every portion thereof and may sublet any portion thereof to any party he desires.3. Notwithstanding delivery of deed by LESSOR to LESSEE and the recording of such deed as between the parties named herein the LESSOR shall continue to be owner of said property and LESSEE shall be deemed a nominee for the LESSOR and shall reconvey title to LESSOR in the event of his default of any of the provisions of this agreement.4. The monthly rent for the premises shall be $_____________ or $___________ per annum during the entire term of the lease. The rent shall be paid promptly on the first day of each and every month. In the event that the LESSEE fails to pay the rent by the tenth (10th) day of the month, LESSOR may terminate the lease pursuant to the provisions of paragraph 13 hereof.5. LESSEE shall make all payments of taxes, water charges, and sewer rents [as well as all payments of interest, amortization or similar payments required by the first mortgagee, ____________]. Failure to make such payments within the time period in the mortgage or to exhibit proof to the LESSOR that such payments were made whenever such evidence is requested shall constitute a default under the terms of paragraph 13 hereof and be grounds for termination of the lease.6. LESSEE shall pay all real estate taxes, water charges, sewer rents or any other municipal charge which may constitute a lien against the property or the house, and [if the first mortgage is satisfied or the first mortgagee does not collect the taxes and water and sewer charges in escrow], LESSEE shall pay such taxes and charges to the City of New York within thirty (30) days of the date they fall due. LESSEE shall exhibit proof of payment of such taxes and charges upon request by the LESSOR. If LESSEE fails to make such payments within the time period, LESSOR may treat such non-payment as a default under the terms of paragraph 13 hereof, and/or advance such taxes and charges by direct payment to the City of New York and such amount shall be deemed additional rent due by the LESSEE forthwith.7. LESSEE shall at all times have property damage insurance in the sum of not less than $__________ or at least 80% of replacement cost of the house, whichever is more. The insurance policy shall name the LESSOR [and the first mortgagee] as co-insured under the policy, as his [their] interest[s] may appear. In addition, LESSEE shall at all times have liability insurance in effect for at least $100,000/300,000/500,000 in which the LESSOR shall be named as co-insured. LESSOR shall be furnished with an official copy of both the property damage and the liability policies. In the event that LESSEE fails to obtain such insurance, such failure shall be deemed a default under paragraph 13 hereof and/or the LESSOR may obtain such insurance for the LESSEE and any other interested parties and recover the cost of such policies as additional rent forthwith.8. LESSEE shall at his own cost and expense provide all services necessary to be provided for himself and any other occupants including heating, utilities, painting, repairs, maintenance and any other ordinary expense item related to the property. LESSEE agrees to make all interior, exterior, extraordinary and structural repairs, including replacement of the roof as is required by law or necessary to put, keep and maintain the house in good condition at all times during the term of the lease. LESSEE shall also keep the sidewalk in front of the house in good condition and remove all snow, ice, rubbish, or unlawful obstruction therefrom. If the LESSEE shall fail to comply with his obligations under this paragraph, and such failure to make repairs materially affects the value of the house, or code violations are placed against the house, and the LESSEE fails to make repairs within thirty (30) days after service of a notice by the LESSOR directing him to make such repairs, it shall be deemed a default under the terms of paragraph 13 hereof.9. LESSEE may make any alterations, decorations, installations, additions and improvements to the house, so long as he does so in compliance with all rules, regulations and laws of any governmental agency having jurisdiction thereof, and they do not in any way impair the market value of the house.10. Upon the expiration of the lease or other termination of this lease, LESSEE shall surrender the house in good order and condition, ordinary wear and tear and damage by the elements excepted, provided that LESSEE has complied with his obligations under paragraph 8 hereof.11. The LESSEE shall have the right at any time during the term of this lease to purchase the property at the price herein set forth:12. a) The purchase price shall be $___________representing the agreed fair market value of the property on this date, minus a credit against the purchase price of a portion of all rent payments made by the LESSEE to the LESSOR up to the date that the LESSEE gives the LESSOR written notice that he will exercise his option to purchase the property as set forth herein. This credit shall be computed by deducting from the first monthly rent payment that portion of the rent payment equal to one-twelfth of _____________% of the purchase price. The balance of the rent payment shall be deducted from the purchase price. Subsequent deductions from the rent payment credit shall be made on the basis of one-twelfth of _____________% of the balance of the purchase price as diminished to reflect prior rent payment credit.*<i class="footnote">*A standard Schedule of Direct Reduction Loan may be adapted and incorporated in this agreement. The sample table following this form is adapted from a loan schedule providing for repayment of $20,000 at 10% interest over a five year period.</i>13. [b) In addition to the sum set forth above the purchase price shall include a sum equal to _____________% of the unpaid balance of the purchase price as set forth above.]**<i class="footnote">**This clause is designed to yield the same effect as stipulation of a penalty for prepayment of a mortgage.</i>14. This option shall be exercised by service of a NOTICE by LESSEE upon LESSOR of his intention to exercise the right to purchase. Such notice shall indicate the purchase price set forth in this paragraph and any adjustment reflecting rent payment credit as set forth herein. Unless the LESSOR disputes the calculation of the purchase price then due, the LESSEE shall pay the balance of the purchase price within ten (10) days of the service of the NOTICE by cash, certified or bank check payable to LESSOR. If payment is not made, the notice shall be null and void, but the LESSEE may serve another NOTICE of election to purchase at any time, provided that at least ninety (90) days have elapsed from the first notice. The LESSOR shall waive the ninety (90) day requirement if LESSEE is under a contract to sell the property to a third party and the closing has been adjourned due to circumstances beyond his control. Upon exercise of the option and payment of the purchase price the LESSOR shall execute any further documents, including a satisfaction of mortgage which may affect the LESSEE'S title to the property, as may reasonably be required. LESSOR may not sell, encumber, pledge, or otherwise affect the LESSEE's option unless the deed or conveyance expressly subordinates such conveyance to the terms of this lease and option agreement.15. LESSEE may not transfer, sell, convey or otherwise alienate his title to the property or his leasehold interest under this lease without the prior written consent of the LESSOR. LESSOR shall not unreasonably withhold his consent. If any sale or transfer is made in violation of this paragraph, it shall be deemed a default under paragraph 13 hereof. Notwithstanding the foregoing, the transferee or purchaser shall have the same right as the LESSEE to purchase the house upon the same notice and conditions set forth in paragraph 11.16. In the event LESSEE fails to make timely payment of the rent provided in paragraph 4 or any additional monies due under paragraphs 6 or 7, LESSOR may serve a written notice upon LESSEE that the lease will be terminated if such rent is not paid in full within ten (10) days from the date of service of the notice, and if such payment is not then made, the lease shall be terminated for all effects and purposes. In the event LESSEE fails to comply with his obligations under paragraphs 5, 6, 7, 8, or 12 and LESSOR elects to hold LESSEE in default, he shall serve a written notice upon LESSEE that if such default is not cured within thirty (30) days from the date of the service of the notice, the lease will be terminated. If such default is not then cured, the lease shall be terminated for all effects and purposes at the end of the thirty (30) day period. Upon termination of the lease under the provisions of this paragraph, LESSOR shall immediately re-enter and take possession of the house by any legal means, including summary proceedings. LESSEE shall not have any further right, title, claim or interest of any kind or nature whatsoever in the house. LESSOR shall have the right to demand that the LESSEE execute any and all documents to transfer title to the property to the LESSOR if he so desires.17. In the event the whole or any substantial part of the premises is taken by condemnation for a public purpose, the lease shall terminate upon vesting of title in the condemnor and the LESSOR shall be entitled to the full amount stipulated as the purchase price of the property as set forth in paragraphs 11a and 11b were the option to purchase to be exercised, and the LESSEE shall be entitled to the balance of the award if any.18. In the event of a fire or other casualty upon which the parties are covered by insurance, and the LESSEE fully and satisfactorily restores the premises to its original or better condition, LESSEE shall be entitled to all of the insurance proceeds.19. Upon expiration of this leasehold agreement and unless terminated prior to that date in accordance with the provisions of paragraphs 11, 13, or 14, the LESSEE shall have the option of purchasing the property upon conveyance of the sum of $1.00.20. In the event of any controversy arising out of or related to this lease or any other matter related to the same transaction, the same shall be submitted to binding arbitration in accordance with Jewish law by a tripartite panel of qualified rabbis versed in such law. LESSOR and LESSEE shall each be entitled to appoint one member of this panel; the two members appointed in this manner shall appoint the third member of the panel. The award by a majority of such panel shall be final and shall be confirmed in any court of competent jurisdiction pursuant to the CPLR. An action shall be brought before a civil court only in the event of failure of one of the parties to appear before a rabbinic tribunal and only upon leave from a rabbinic tribunal.21. Any notice which must be given hereunder shall be served personally or by certified or registered mail to the party's last known address.22. This Agreement shall not be changed or modified orally. It shall be binding upon the parties, their assigns, heirs, legatees and successors in interest or title.
  Made in the Borough of Manhattan, City and State of New York on the date aforesaid.
  WITNESS
  Name:
  Address:
  WITNESS
  Name:
  Address:
  SAMPLE SCHEDULE OF DIRECT REDUCTION LOAN