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text: Contemporary Halakhic Problems, Vol III
  בעיות הלכתיות עכשוויות, כרך ג
  Contemporary halakhic problems; by J. David Bleich, 1977-2005
  
  
  Contemporary Halakhic Problems, Vol III
  
  Editor's Foreword
  
  In his dual role of professor at Yeshiva University's Benjamin N. Cardozo's School of Law, and head of one of the prestigious <i>Kollelim</i> (graduate centers of advanced talmudic studies) of its affiliated Rabbi Isaac Elchanan Theological Seminary, the author of this volume is in the happy position of being able to bridge the worlds of Jewish and civil law. 
  Rabbi Bleich has done so for the third time in this series—always with remarkable erudition and engaging elan, accompanied by a clear and elegant style. In many ways, his writings on contemporary issues in Halakhah are disconcerting to those whose conventional stereotypes of a talmudist are undermined by the broad scholarship and literary grace of our author. 
  This is only one of the side benefits of the present volume as of its two predecessors. Even more important is the testimony it offers—by the questions raised and the issues discussed, even more than by the solutions proffered—to the vitality of Halakhah and the capacity of its method to meet new challenges. 
  Professor Bleich's readers will no doubt join me in reminding him that this third effort constitutes, in Jewish law, a <i>hazakah</i> or presumption of continuity, and that we may therefore look forward to many more volumes in this series on issues in contemporary Halakhah. 
  NORMAN LAMM
  Editor
  December 5, 1988
  2nd day of Hanukkah, 5749
  
  Preface
  
  As was the case with the earlier volumes in this series, 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. Other portions of this material were first published in the <i>Journal of Halacha and Contemporary Society</i>. Chapter fifteen, which is devoted to an analysis of the halakhic issues surrounding the Sotheby sale of manuscripts and rare books rescued from Nazi Germany, was first published in the <i>Cardozo Law Review</i> and hence many aspects of law review style have been preserved in the citation of sources in that chapter. Portions of this work served as the subject matter of <i>shi'urim</i> and seminars conducted for students of the Rabbi Isaac Elchanan Theological Seminary 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 definitive statements of halakhic determinations. 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 my brother-in-law, Rabbi Mordecai Ochs, for his painstaking reading of the manuscript and his many valuable insights; to Rabbi Jacob B. Mandelbaum of the Mendel Gottesman Library of Yeshiva University whose encyclopedic bibliographic knowledge has been of immeasurable aid; to Mrs. Chaya Gordon, Mr. Zvi Erenyi and Mr. Zalman Alpert of the Mendel Gottesman Library for their constant helpfulness and assistance; to Mrs. Els Bendheim, both for her meticulous proofreading of the galleys and for her keen and imaginative editorial comments; and especially to my students for their incisive and relentless questioning. 
  My thanks also to Dr. Norman Lamm for initiating the Library of Jewish Law and Ethics; to the publisher of this volume, Mr. Bernard Scharfstein for his unfailing indulgence and patience and his warm friendship; and to Dr. Ya'akov Elman and Dr. Richard White for their 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
  
  A professor at a prominent school of law relates that he was asked a rather incongruous question. On the last day of classes in a course on Roman law, a student soliciting information regarding the approaching final examination asked, "Are we responsible only for material in the textbook or are we responsible for recent cases as well?" It is, of course, ludicrous to speak of "recent cases" in conjunction with a system of law that, despite its continued and profound influence over other systems of law, has for many centuries not been sovereign in any jurisdiction. 
  A similar question, if asked in a class devoted to the study of Jewish law, would not have elicited a derisive response. Despite the fact that Jewish law was not the law of any sovereign jurisdiction from the time of the exile of the people of Israel from their ancestral homeland until its limited reinstatement in rabbinic courts in the State of Israel, Jewish law remains alive and healthy throughout the Diaspora. Barely a day goes by that does not bring with it publication of new opinions and responsa that serve to expand and deepen our understanding of the immutable principles embodied in Halakhah while simultaneously bearing witness to the vitality and dynamism of Jewish law in confronting novel situations. 
  There is a well-known hasidic tale that recounts that, one Passover eve, the Berditchever <i>Rebbe</i> announced that he would not begin the <i>seder</i> until a quantity of Turkish wool, Austrian tobacco and Oriental silk was brought to him. Within a short time everything that he requested was procured. Thereupon, he announced that one additional item was required: a crust of bread. His disciples were taken aback by this strange request but they unquestioningly set out to fulfill their master's command. They scoured the town, but to no avail. They were forced to return empty-handed and crestfallen. The Berditchever listened in silence as they reported their lack of success. Then, with a smile enveloping his face, he raised his hands and exclaimed, "Master of the Universe! The Russian Czar deploys thousands of guards to patrol his borders, employs countless numbers of police officers in order to enforce his edicts and administers a vast penal system to punish those who violate his laws. But look at the contraband that can be found within his borders! You, Master of the Universe, have no guards, no police and no prisons. Your only weapon is a brief phrase in the Torah, forbidding Jews to retain <i>ḥamez</i> in their possession on Passover, but not a bit of <i>ḥamez</i> can be found in all of Berditchev!" Indeed, the fact that Jewish law remains vibrant is assuredly eloquent testimony to the loyalty and devotion of the Jewish people. No other such comprehensive system of law has survived without the police power of the state to enforce adherence to its dictates. 
  To be sure, there was a time when, in this country, Judaism was regarded by many as primarily a religion of ritual. There was a time when the elementary truism that Jewish law is equally concerned with jurisprudence as well as with economic and social issues was all but forgotten even by the vast majority of the religiously observant. An apocryphal story is told of a young rabbi who spent a number of years in a far-flung community. An elderly colleague, schooled in the European tradition, passed through town and asked him, "How often are you asked to respond to <i>she'elot,</i> to questions of Jewish law, in this community?" "That is the first question that has come my way in all the years that I have been in this town," was the pained retort. 
  <i>Akhshar dara</i>—How the generation has progressed! This is no longer the case. Our community has rediscovered its roots. A recording device attached to the telephone of any one of a rapidly growing cadre of American born and bred rabbinic decisors would bear testimony to the frequency and range of questions posed. A perceptive auditor would also note an even more significant point. In times gone by, a rabbi would be asked a question; his answer, more frequently than not, would be yes or no, permissible or forbidden, kosher or non-kosher. Today, the answer is met with follow-up questions which, in turn, elicit a mini-discourse explaining reasons and ramifications, exceptions and additional applications. Interlocutors of our generation are intelligent, sophisticated and, above all, have a genuine thirst for Torah knowledge and a passionate desire to broaden their vistas of understanding. 
  The questions and issues discussed in this volume, as well as in the volumes which have preceded, are not abstract, theoretical excurses into the literature of a dormant legal system. Each one focuses upon material collected in response to a question or to an issue of topical concern; each one has been addressed in contemporary rabbinic writings at the specific behest of individuals whose questions reflect a deeply-perceived need to penetrate the intricacies of Jewish law and teaching with regard to these matters. 
  Many of the problems discussed—and their resolution—testify to the vibrant and dynamic nature of Torah. Technological advances and changing social institutions have given rise to issues that could not possibly have been confronted by rabbinic decisors of preceding generations. Yet, although the Torah is eternal and unchanging, one may plumb its depths for solutions to questions which would have been imponderable in earlier ages. Indeed, various scholars may advance differing answers to such questions and each position may be well founded in authentic Jewish teaching. 
  This, too, reflects a fundamental principle of Jewish law and was recognized as such by the Sages. <i>Midrash Shoḥer Tov</i> 12.4 reports:
  Rabbi Yan'ai declared, "The words of the Torah were not given in final form (<i>ḥatukhin</i>). Rather, with regard to every single matter that the Holy One, blessed be He, told Moses, He enunciated forty-nine considerations [to render it] pure and forty-nine considerations [to render it] impure. Moses exclaimed before Him, 'Sovereign of the Universe, when shall we arrive at a clarification of Halakhah?' God said to him, 'According to the majority shall you decide (Exodus 23:2). If those who declare it impure are more numerous, it is impure; if those who declare it pure are more numerous, it is pure.' "
  Clearly, the "matters" to which the Midrash refers are not those presented to Moses in an unequivocal manner in the context of the corpus of either the Written or the Oral Law. They are, then, matters with regard to which human intelligence must seek answers by grappling with principles and precedents firmly established within the system of Halakhah. Such endeavors constitute a dynamic and ongoing process. 
  Since a normative and universally binding resolution of any such issue can be reached only by consensus of Torah scholars or by a formal poll of their views it follows that the views presented in the discussions included in this volume are not intended to constitute a final and definitive statement of Halakhah. Rather, the material should be regarded as designed to familiarize the reader with the current state of rabbinic thought regarding these topical matters. If this endeavor will also prompt the student to further study and the scholar to independent investigation of these subjects and thereby foster yet additional expansion of the broad horizons of Torah scholarship, the author will regard his labors as having been amply rewarded. 
  
  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 Societal Issues
  
  <i>A society is like unto a stone arch: If one takes away a single stone, the entire [arch] wobbles and is undermined.</i>
  BEREISHIT RABBAH 100:7
  A generation of Jews born, reared and educated in the New World has grown to maturity. Qualitatively and quantitatively, members of this generation are observant of the tenets of Judaism to a degree far beyond the fond dreams of their mentors. Yet, only in recent years have we, as a community, come to appreciate that the uniqueness of the Jewish <i>Weltanschauung</i> should also define our attitude with regard to problems that are not of parochial Jewish concern but are societal in nature. One should not anticipate the attitudinal foci of Judaism to be at one with those of the dominant culture. The Jew whose opinions with regard to social issues and societal concerns are influenced by the Op-Ed page of the daily newspaper rather than by sacred writ perforce becomes the victim of a curious religious schizophrenia. His ritual observance may be exemplary, but his attitudes and actions with regard to matters of social concern may actually be antithetical to Torah values. 
  Judaism is an all-pervasive discipline of life. Its standards are unique. Its values are not the product of human inquiry but of divine revelation. Its moral norms are theocentric rather than homocentric. Little wonder, then, that the Jewish response to social dilemmas of our age is so often in striking discord with contemporary mores and at variance with conventionally accepted wisdom. But rather than adjusting its teachings and practices to the perceived needs and desires of society, it is the goal of Judaism to fashion society in the divine image. The mission of the community of Israel is to influence societal mores and values so that they become reflective of the divine will and thereby <i>le-taken olam be-malkhut Shadai</i>—to perfect the world under the kingship of God. 
  Nuclear Warfare
  There is certainly no indication that the nations of the world are, at present, desirous of abiding by Jewish teaching regarding nuclear warfare and the related issue of nuclear disarmament. There are, however, individuals, groups, and even governmental bodies, who have evidenced a keen interest in the perspectives of Jewish tradition concerning this grave question. The teachings of religion certainly serve as a factor in molding social policy even in a secular society. Moreover, for Jews, whether or not Jewish teaching with regard to this or other issues is implemented in practice, the formulation of the relevant Halakhah is in itself an imperative of Torah study. 
  It is entirely understandable that Jewish teaching with regard to nuclear warfare cannot be examined other than in the context of its attitude toward war in general. To be sure, nuclear war poses a threat to the very survival of the human race. But Judaism has long recognized that "He who destroys a single life is accounted as if he has destroyed the entire world; and one who preserves a single life is accounted as if he has preserved the entire world" (<i>Sanhedrin</i> 37a). Every person is an <i>olam katan</i>, a microcosm in himself, and of infinite value in the eyes of the Creator. Thus, the moral problems posed both by conventional and nuclear warfare are essentially alike; in nuclear warfare the problem becomes magnified simply because of the sheer magnitude of the number of potential victims. 
  Halakhah, as it applies to Jews, recognizes that man has no right to make war against his fellow. Standard translations of the Bible render Exodus 15:3 as "The Lord is a man of war; the Lord is His name." Rashi, citing similar usages having the same connotation, renders the Hebrew term <i>"ish"</i> as "master." Thus the translation should read, "The Lord is the master of war; the Lord is His name." God is described as the master of war because only He may grant dispensation to engage in warfare. The very name of the Lord signifies that He alone exercises dominion over the universe. Only God as the Creator of mankind and proprietor of all life may grant permission for the taking of the lives of His creatures. 
  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>, a permitted 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 solely by God. 
  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. "<i>Ha-ba le-horgekha hashkem le-horgo</i>—If [a person] comes to slay you, arise and slay him first" (<i>Sanhedrin</i> 72a) is a principle which applies to Noachides as well as to Jews. Accordingly, a defensive war would appear to require no further justification. The right of non-Jews to wage war under other circumstances is examined in the second volume of this writer's <i>Contemporary Halakhic Problems</i>. There are, however, several further points having a direct bearing upon nuclear warfare which should be noted. 
  Acceptance of the premise that the principle of self-defense applies to Noachides as well as to Jews does not serve to justify any and all military action even if limited to wars of defense. War almost inevitably results in civilian casualties as well as the loss of combatants. Yet the taking of innocent lives certainly cannot be justified on the basis of the law of pursuit. The life of the pursuer is forfeit in order that the life of the intended victim be preserved. However, should it be impossible to eliminate the pursuer other than by also causing the death of an innocent bystander, the law of pursuit cannot be invoked even by the intended victim,1<i class="footnote">This is certainly the case with regard to a Jew who is pursued by a person intent upon taking his life. In such circumstances the intended victim may not save his own life at the expense of the life of an innocent third party. The general rule that all prohibitions are suspended in face of danger does not apply to the three cardinal sins, viz., homicide, idolatry and certain forms of sexual licentiousness. Hence, the intended victim may not take the life of his pursuer if it is impossible to do so other than by taking the life of an innocent party at the same time. There are however, some authorities, including R. Shmu’el Jaffe-Ashkenazi (Maharash Jaffe), <i>Yefeh To’ar</i> (Fürth, 5452), Genesis 44:5, (cited by <i>Parashat Derakhim, derush</i> 2), who maintain that a gentile may transgress any prohibition, including the three cardinal sins, in order to save his life. According to Maharash Jaffe, defensive military action designed to eliminate an aggressor would be justified on grounds of self-defense even when such action necessarily results in the loss of civilian lives. According to this authority, such action would be permissible in situations in which it is impossible to kill the aggressor without also taking the lives of innocent noncombatants, provided that the life of the individual undertaking such action is endangered. See also, R. Shlomoh Algazi, <i>Shama Shlomoh</i> (Amsterdam, 5470), p. 15b; <i>Shenot Ḥayyim</i>, p. 36b; R. Barzilai Baruch Ya’avets, <i>Leshon Arumim</i> (Izmir, 5516), p. 7; and R. Abraham Samuel Meyuchas, <i>Sedei ha-Areẓ</i>, I, 55. The view of Maharash Jaffe is, however, rejected by numerous later authorities. R. Judah Rosanes, <i>Parashat Derakhim, loc. cit.</i>, concedes that a Noachide may commit acts of idolatry and sexual licentiousness in order to escape danger since the biblical verses banning such actions even in the face of <i>force majeure</i> are addressed only to Jews and are not part of the Noachide Code. However, the prohibition against homicide under such circumstances is not based upon a biblical command but upon the <i>a priori</i> consideration “How do you know that your blood is sweeter than the blood of your fellow?” (<i>Sanhedrin</i> 74a). As an <i>a priori</i> concept, argues <i>Parashat Derakhim</i>, this principle is binding upon Noachides no less than upon Jews. A similar view is expressed by the same authority in his <i>Mishneh le-Melekh, Hilkhot Melakhim</i> 10:2, as well as by R. Joseph Babad, <i>Minḥat Ḥinnukh</i>, no. 296, and in a note appended by a grandson of R. Isaac Schorr to the latter’s <i>Teshuvot Koaḥ Shor</i>, no. 20, p. 35a.</i> much less so by a third party who is himself not personally endangered. Since the law of pursuit is designed to preserve the life of the innocent victim, it is only logical that it is forbidden to cause the death of a bystander in the process since to do so would only entail the loss of another innocent life. In such situations the talmudic principle "How do you know that your blood is sweeter than the blood of your fellow?" (<i>Sanhedrin</i> 74a) is fully applicable. 
  If war on the part of non-Jews is sanctioned solely on the basis of the law of pursuit, military action must perforce be restricted to situations in which loss of life is inflicted only upon armed aggressors or upon active participants in the war effort; military action resulting in casualties among the civilian populace would constitute homicide, pure and simple. Following this line of reasoning there could certainly be no justification for military action intentionally designed to claim civilian lives. Thus, despite the resultant diminution of casualties among the armed forces, the nuclear bombing of Hiroshima and Nagasaki could not be justified on the basis of the law of pursuit. Justification of the use of atomic weapons simply as an act of war is contingent upon resolution of the question of whether or not non-Jews have been granted the right to engage in war. As noted earlier, that question has been discussed elsewhere. 
  There is one other avenue which should be explored as possible justification of military action which results in casualties among noncombatants. Jewish law, to be sure, recognizes a distinction between willful transgression (<i>mezid</i>) and inadvertent transgression (<i>shogeg</i>). The latter occasions no punishment at the hands of a human court but, in terms of heavenly law, requires penance and expiation. In the case of certain serious infractions, a sacrifice is required as atonement. Inadvertent transgression, or <i>shogeg</i>, is defined as ignorance of the prohibition itself or ignorance that the act performed is proscribed because of confusion with regard to a factual detail (e.g., knowledge that a certain act is forbidden on <i>Shabbat</i> but ignorance of the fact that it is the Sabbath day). Even minimal culpability as <i>shogeg</i> requires that the act itself and its consequences be fully intended. Performance of an act with intention to achieve an innocuous result, even when that act is performed in a manner which may well result in an unintended infraction, engenders no culpability even if the actual result is one which, were it intended, would be a forbidden act. Since the resultant act is unintended (<i>davar she-eino mitkaven</i>) no expiation is required. The source for this provision of Halakhah is the <i>Mishnah, Beizah</i> 22b, which records a dispute between R. Judah and R. Simon with regard to culpability for such acts. The halakhah is in accordance with the permissive opinion of R. Simon. Thus, for example, a bed, chair or couch may be dragged along a dirt floor provided that there is no intention to gouge a hole in the floor. The act is entirely permissible and the person acting in such manner incurs no liability even if a hole is dug inadvertently. Accordingly, it might perhaps be argued, a person intent upon killing a pursuer need not be constrained by the concern that his act may possibly cause the death of an innocent bystander since the result is unintended. A similar concept appears in other theological systems, perhaps as a result of the influence of Jewish law, and is known as the "double effect" theory. 
  This argument may be rebutted on a number of grounds. Although most authorities make no such distinction, R. Aḥa'i Ga'on, in his <i>She'iltot, she'ilta</i> 105, maintains that the concept of a <i>davar she-eino mitkaven</i> is applicable only with regard to possible violation of Sabbath restrictions, but that acts which might result in transgression of other prohibitions are forbidden even if the proscribed effect is unintended. <i>Tosafot, Shabbat</i> 110b, asserts that acts of such nature are forbidden whenever the possible result is a capital transgression. 
  Furthermore, an act is permitted even though the unintended effect is forbidden only when it is not a certainty that the proscribed effect will occur. When the forbidden effect will of necessity take place, the act is forbidden even though it is intended in order to effect an innocuous result. Thus, for example, a person may not sever the head of an animal on the Sabbath on the plea that he intends only to remove the head in order to feed it to a dog, but not to kill the animal. Such an act is known as a <i>pesik reisheih</i>. The rationale underlying this provision is that a necessary effect cannot be regarded as unintended. Accordingly, military action which of necessity will result in civilian casualties cannot be justified on the contention that the killing of innocent victims is unintended since the loss of those lives is the inescapable result of such action. According to most authorities, such acts are forbidden even if no benefit is derived from the proscribed effect.2<i class="footnote">An act performed on <i>Shabbat</i> leading to an undesired effect which itself is in violation of Sabbath laws (<i>pesik reisheih de-lo niḥa leih</i>) is forbidden by virtue of rabbinic edict. No biblical prohibition is attendant upon such an act because, with regard to <i>Shabbat</i> violations, intention is a necessary element in the biblical infraction (<i>melekhet maḥshevet asrah Torah</i>). See, for example, <i>Magen Avraham, Oraḥ Ḥayyim</i> 320:20 and <i>Ḥayyei Adam, Hilkhot Shabbat</i> 9:6. Many authorities who forbid an act leading to an undesired effect which is in itself a violation of some other prohibition regard the act leading to such a “double effect” as being biblically proscribed; see Rosh, <i>Shabbat</i> 14:9.</i>
  One point requires further clarification. There may be some question with regard to whether circumstances involving a <i>pesik reisheih</i> defeat the plea of <i>davar she-eino mitkaven</i> insofar as violation of the provisions of the Noachide Code by non-Jews is concerned. Such a distinction is found with regard to a somewhat related matter. In most circumstances, a Jew may not direct a non-Jew to perform an act which the Jew himself is forbidden to perform. Some authorities, however, permit a Jew to ask a non-Jew to perform an act which entails a <i>pesik reisheih</i>, i.e., the desired result for which the particular act is intended is entirely permissible but would be forbidden to the Jew only because it necessarily entails a concomitant result which is proscribed.3<i class="footnote">See <i>Magen Avraham, Oraḥ Ḥayyim</i> 277:7 and <i>Mishnah Berurah</i> 253:31 and 277:15.</i> Thus, for example, these authorities permit a Jew, on the Sabbath, to direct a non-Jew to remove a pot from among the burning coals in which it is embedded even though some coals are necessarily extinguished in the process. The rationale underlying this ruling is not entirely clear. If it is understood that this ruling is based on the principle that, for non-Jews, even a <i>pesik reisheih</i> is encompassed in the category of an unintended effect (<i>davar she-eino mitkaven</i>), the selfsame provisions would apply to the culpability of non-Jews with regard to the provisions of the Noachide Code. If so, insofar as non-Jews are concerned, any <i>davar she-eino mitkaven</i> would be permissible including acts which constitute a <i>pesik reisheih</i>. It should be noted, however, that many authorities forbid allowing a non-Jew to perform an act on the Sabbath on behalf of a Jew which involves a <i>pesik reisheih</i>.4<i class="footnote">See <i>Magen Avraham, Oraḥ Ḥayyim</i> 253:41; <i>Mishnah Berurah</i> 253:99-100, 253:51 and 277:30. Cf., R. Benjamin Silber, <i>Brit Olam</i> 16:1 and accompanying note.</i> Moreover, the permissive ruling formulated by some authorities with regard to performance of an act involving a <i>pesik reisheih</i> by a non-Jew may only reflect the view that the rabbinic prohibition against permitting a non-Jew to perform forbidden acts on behalf of a Jew is circumscribed in nature and is limited only to situations in which the Jew desires the forbidden effect which is accomplished on his behalf by the non-Jew. If so, there is no evidence that non-Jews are relieved of culpability with regard to unintended violations of the Noachide Code when such acts are committed in the form of a <i>pesik reisheih</i>.5<i class="footnote">See also R. Moshe ha-Levi Epstein, <i>Bet Mosheh, Even ha-Ezer</i> 5:13, and below, p. 158.</i>
  It must be noted that, even according to the authorities who maintain that non-Jews may engage in wars of aggression, there are strong grounds for arguing that the devastation associated with nuclear warfare renders such warfare illicit. The Gemara, <i>Shevu'ot</i> 35b, declares, "A sovereign power which slays one sixth [of the populace] of the universe is not culpable." It is to be inferred that the death of one-sixth of the inhabitants of the universe entails no culpability, but that slaying more than one-sixth of the population of the universe does engender culpability. <i>Tosafot</i>, understanding the dictum as referring to the monarch of a Jewish state, indicates that the Gemara here imposes a constraint upon a <i>milḥemet reshut</i> or discretionary war.6<i class="footnote">See <i>Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim</i>, no. 208, who declares that not only is annihilation of one-sixth of the populace of the universe forbidden but also that war leading to genocide, defined as the extermination of one-sixth of a particular nation or people, is similarly prohibited.</i> The sovereign may not initiate discretionary war if it is to be anticipated that an inordinate number of people will perish as a result of hostilities. According to <i>Tosafot</i>'s analysis, a similar restriction does not apply to wars which are mandated by Scripture. 
  The various categories of <i>milḥemet mizvah</i> certainly do not apply to non-Jews who are not the recipients of any specific scriptural commandments concerning war. According to the most permissive view, non-Jews are merely permitted to engage in military activity but, for non-Jews, warfare cannot be deemed obligatory under any circumstances. Accordingly, limitations upon warfare undertaken as a <i>milḥemet reshut</i> would assuredly apply to war undertaken by non-Jews. Hence, according to <i>Tosafot</i>, non-Jews are not entitled to engage in war which is likely to result in the annihilation of more than one-sixth of the population of the world. This restriction applies even to wars of defense in which not only the aggressors are destroyed but the lives of a large number of innocent victims are claimed as well. The nature of nuclear warfare is such that, in all likelihood, more than one-sixth of the world's population would be destroyed in a nuclear holocaust. 
  A careful distinction must be drawn between abjuration of nuclear warfare and unilateral disarmament. Although nuclear retaliation may not be consistent with halakhic norms, the <i>threat</i> of retaliation is an entirely legitimate means of discouraging aggression. A wise man would do well not to resist a mugger and surrender his wallet without protest. Yet only a fool would carry a placard on his shoulder proclaiming that message and announcing to all and sundry that he may be accosted with impunity. Nuclear arms prudently deployed may well serve as a deterrent even though a moral government would eschew their use. 
  Sale of Arms
  Frequent press reports focusing upon the role of the State of Israel as a purveyor of arms to various countries have given rise to many inquiries concerning whether or not such transactions are in violation of Jewish law. It has also been noted that the 1981 assassination attempt upon President Reagan involved the use of a handgun purchased from a Jewish pawnbroker in Dallas, Texas. The propriety of engaging in commercial traffic in the sale of weapons, whether by an individual or by a state, is certainly a matter of halakhic concern. 
  Rambam, <i>Hilkhot Rozeaḥ</i> 12:12; paraphrasing <i>Avodah Zarah</i> 15b, declares: "It is forbidden to sell heathens weapons of war. Nor is it permitted to sharpen their spears, or to sell them knives, manacles, iron chains, bears, lions or any object which can cause harm to the public; but it is permitted to sell them shields which are solely for defense." A similar restriction is recorded by Rambam, <i>Hilkhot Rozeaḥ</i> 12:4, with regard to sale of weapons to Jewish bandits. The underlying principle which gives rise to this prohibition is clearly enunciated. In selling arms to such individuals "one strengthens the hands of an evil-doer and causes him to transgress" and "anyone who causes one who is blind with regard to a matter to stumble … or one who strengthens the hand of a person who is blind and does not see the path of truth because of the desire of his heart violates a negative precept as it is stated, 'you shall not put a stumbling block before the blind.' "
  The latter precept, recorded in Leviticus 19:14, was understood by the Sages as an admonition designed to protect not only the physically blind but the intellectually and morally blind as well. A Jew is forbidden to take advantage of another person's lack of awareness in a way which results in physical, pecuniary or moral harm to that person. The prohibition is binding whether or not such advice or action is motivated by a desire for personal gain. Thus the prohibition encompasses three principal types of activity: (1) misleading the blind or infirm and causing physical harm; (2) offering misinformation or poor advice to the uninformed; and (3) preying upon or pandering to the predilections of the morally blind.7<i class="footnote">Whether or not the act ostensibly proscribed by the literal meaning of the verse, viz., placing a physical stumbling block before a blind person, is actually included in this prohibition is a matter of some dispute. See <i>Minḥat Ḥinnukh</i>, no. 232; R. Elchanan Wassermann, <i>Koveẓ Bi’urim</i> (Tel Aviv, 5726), <i>Shev Shma‘tteta</i>, sec. 13; R. Nathan Gestetner, <i>Natan Piryo, Ḥullin</i> 3a; Rashi, <i>s.v. ve-afilu kuti</i>.</i> In prohibiting the placing of a stumbling block before the blind, Halakhah makes no distinction between Jew and gentile; all such actions are prohibited regardless of who is victimized thereby. The sale of weapons to persons who will misuse them clearly falls into the third category, and, accordingly, such activity was specifically banned by the Gemara. Rambam's use of the phrase "or any object which can cause harm to the public" may indicate that sale of such items may be encompassed within the first category as well. 
  There is one exception to the general prohibition concerning sale of weapons to non-Jews. The Gemara, <i>Avodah Zarah</i> 16a, explicitly permits sale of weapons "to the Persians who protect us." <i>Hilkhot Avodah Zarah</i> 9:8 explains that it is permitted to sell armaments to "the servants of the king and his soldiers because they wage war against the enemies of the state in order to preserve it; hence they protect us since we dwell among them." Similarly, in <i>Hilkhot Rozeaḥ</i> 12:13, Rambam declares that it is permitted to sell arms to "the army of the populace of the state because they protect Israel." This provision is also recorded in <i>Shulḥan Arukh, Yoreh De'ah</i> 151:6. This exemption from the general prohibition is thus predicated upon the general consideration of self-defense. Actions which are otherwise prohibited are permitted if necessary to preserve life. A suitably equipped army, militia and police force is necessary to preserve law and order and to protect against the enemy. Hence sale of weapons to forces charged with protecting the public is permitted as a legitimate form of self-defense. 
  It would logically follow that sale of arms is permitted not only to the armed forces and police of one's own country but also to other nations actively engaged in protecting the security of a Jewish state or of a Jewish populace. Hence sale of arms to nations allied with Israel by means of a formal or informal security pact would be justified. Absent such agreement, arms sales would be forbidden unless absolutely necessary by virtue of other considerations in order to protect life, e.g., as part of a barter arrangement designed to secure materiel necessary for self-defense. Accordingly, the halakhic propriety of the arrangements surrounding each sale of arms by the State of Israel would have to be examined in light of the above factors and considerations. Rabbi Chaim David Halevi, the Sephardic Chief Rabbi of Tel Aviv, <i>Aseh Lekha Rav</i>, I, no. 19, opines (perhaps overconfidently) "… there is no doubt that [the State of Israel engages in such sales] on the basis of security considerations and takes into account the benefit which will arise to us therefrom."
  Jewish Terrorists
  Downtrodden, oppressed and persecuted for millennia, Jews practiced what others preached. When smitten, they turned the other cheek. Undoubtedly, this reaction was rooted in pragmatic considerations. Resistance would only evoke greater hostility; retribution would assuredly provoke unspeakable punishment. Eventually, reticence, timidity and fear became ingrained in the psyche of the <i>galut</i> Jew. Response in kind simply became unthinkable. 
  For better or for worse, this is no longer the case in the modern-day State of Israel. Survival demanded preparedness in the form of strong defense forces and a prompt crushing response to armed aggression. Wars of attrition and endless acts of terrorism continue to sap the strength of the yet nascent state. On the governmental level the response has been a policy of swift retaliation and preventative strikes to eliminate danger. As a result, a profound psychological metamorphosis has taken place. Fear that worse misfortune be provoked has been eradicated. Reticence is no more. The instinctive response to violence is violence. And, now, the ultimate has arrived: terrorism against terrorism. 
  In formulating national policy, the State of Israel is not necessarily guided by the teachings of Jewish tradition. It has not customarily sought the prior advice of its own Chief Rabbinate with regard to the grave moral and halakhic issues confronted in the defense of the State. Observant Jews have nevertheless tended to be supportive of government policy in matters pertaining to national security. They have been supportive with regard to such matters for two reasons: (1) A vague, unarticulated feeling that justification for these policies can be found in Jewish tradition. (2) A clear perception that vocal opposition to those policies could only compromise the security of the State and endanger the lives of countless thousands of its citizens. In any event, the government has not pursued policies designed to snuff out the lives of blameless persons. 
  But, in recent years, individuals have taken matters into their own hands and have committed acts endangering lives and limbs of the innocent as well as of the guilty. Moreover, those persons are observant Jews who, incontrovertibly, have manifested sacrificial commitment to the Land of Israel. Most significantly, those individuals plead that their actions are born of an ideological commitment to Jewish teaching. Jewish law, they contend, sanctions and even mandates the acts of terrorism which they promulgate. 
  Provocation, however, cannot be equated with justification. One can readily understand the mentality of those who believe that further violence can be prevented only by instilling fear of retaliation. Even were history to demonstrate that violence only serves to breed further violence, human nature is such that the evidence would be disregarded. Desire for revenge is also understandable, but to understand is not to condone. Jews dare not allow themselves to respond as others would and do; Jews dare not give free reign to feelings of anger and vengeance. Response, even to danger, must be conditioned by the teachings of the Torah. 
  There is no question that the State of Israel is surrounded by enemies intent upon the annihilation of its inhabitants. The present situation is reflected in Ramban's poignant interpretation of a phrase found in the concluding section of Leviticus. "And they shall confess their iniquity, and the iniquity of their fathers, in their treachery which they committed against Me and also that they have walked contrary unto Me. I also will walk contrary unto them and bring them into the land of their enemies; if then their uncircumcised hearts be humbled then the punishment of their iniquity will be accepted" (Leviticus 26:40-41). The juxtaposition of these verses is puzzling. Scripture speaks of confession of iniquity. Confession of sin is indicative of repentance. If the people of Israel are indeed repentant, such repentance should signal the close of the period of punishment and affliction foretold in the earlier versions of the <i>tokhaḥah</i> (rebuke). And yet, the very next verse proceeds to state that, instead of responding to their confession of sin in a positive manner, God declares, "I also will walk contrary unto them and bring them into the land of their enemies." Yet a further punishment is predicted: the people of Israel are to be led into the land of their enemies. Even the nature of this further punishment is difficult to comprehend since among the earlier misfortunes which constitute the punishment for Israel's iniquity is recorded "And you will I scatter among the nations …" (Leviticus 26:33). 
  It is obvious that it is these difficulties which prompted Ramban, in commenting upon this verse, to remark that the phrase "the land of their enemies" does not at all refer to the lands of Israel's dispersion. On the contrary, comments Ramban, the phrase refers, not to the Diaspora, but rather to the Land of Israel itself. The Land of Israel is referred to as "the land of their enemies" because the verse alludes to a period during which, although Jews will reside in the land, it will be encircled on all sides by enemies. According to Ramban, "and they shall confess to their iniquity" marks the beginning of the process of repentance, but does not connote that complete repentance has taken place. God responds in kind. He allows His people to return to the land of their forefathers, but, during that stage of their spiritual rehabilitation, they do not yet live in peace and tranquility. They return to the Land of Israel, but are surrounded by "enemies." There, under such conditions, Scripture tells us, their heart will be humbled and repentance will be complete. Then, and only then, does God promise, "I will remember My covenant with Jacob and also My covenant with Isaac and also My covenant with Abraham will I remember." When repentance is complete, then will the iniquity be entirely forgiven and Israel restored to a position of favor in the eyes of God. 
  Whether or not merited by partial repentance, divine beneficence has permitted a partial return to our land. Encirclement by enemies, according to Ramban, is both a form of divine retribution as well as an impetus to repentance. To be sure, enemies must be recognized as such and one may respond to an enemy in an appropriate manner. Certainly, an overt act of aggression committed by an enemy need not be accepted and suffered in silence even though the resultant suffering may well be part of the divine plan. "He who comes to slay you, arise and slay him" is a normative principle of Jewish law. Self-defense is not merely permissible but also mandatory. The "law of the pursuer" demands that any would-be murderer be summarily executed, if necessary, in order to save the life of an innocent victim. 
  Settlers in newly-founded communities on the West Bank and in the Golan are assuredly entitled to the fullest measure of protection. If, indeed, governmental authorities have not provided adequate protection no one can fault settlers who engage in legitimate forms of protection. 
  But the "law of the pursuer" justifies only the taking of human life when it is clear that the individual is intent upon an act of aggression. Although malevolent intent may be inferred from circumstances and conduct, mere unsubstantiated suspicion of homicidal intent is not sufficient to permit the taking of a human life. Moreover, there is no dispensation to take the life of a pursuer if the danger can be obviated by less drastic measures. The "law of the pursuer" may be invoked only when the loss of innocent life is otherwise a virtual certainty. 
  In analyzing the "law of the pursuer": formulated in Exodus 22:2, the Gemara, <i>Sanhedrin</i> 72a, states, "… if the matter is clear to you as the sun that he is not at peace with you, slay him; but if not, do not slay him."8<i class="footnote">See R. Isaac Schorr, <i>Teshuvot Koaḥ Shor</i>, no. 20; R. Chaim Ozer Grodzinski, <i>Teshuvot Aḥi‘ezer</i>, I, no. 23, sec. 2; and R. Moses Feinstein, <i>Ha-Pardes</i>, Nisan 5728, reprinted in <i>Sefer ha-Zikaron le-Maran ha-Gri Abramsky</i> (Jerusalem, 5738), and in <i>Iggerot Mosheh, Ḥoshen Mishpat</i>, II, no. 69, sec. 2.</i> This is true whether the putative aggressor be a Jew or a non-Jew. While the taking of the life of a non-Jew does not occasion capital punishment at the hands of a human court, Ravan, <i>Baba Kamma</i> 111b, and <i>Kesef Mishneh, Hilkhot Rozeaḥ</i> 2:11, are quite clear in ruling that taking the life of a non-Jew is encompassed in the prohibition against homicide. Explicit authority for that ruling is found in <i>Mekhilta, Mishpatim</i> 4:58. Indeed, there are many forms of homicide for which Jewish law does not prescribe capital punishment. The nature of the punishment administered and the absence of the severest form of punishment does not at all indicate that the act is to be condoned. 
  Indeed, condoning the act may well be an even worse infraction than the deed itself. II Samuel 21 reports that in the time of King David there was a famine which lasted for three consecutive years. David recognized that the famine must be a punishment for some transgression. Accordingly, he approached the <i>urim ve-tumim</i> and inquired of God what the infraction might be. There came the response, "And the Lord said: 'It is for Saul and for [his] house of blood because he put the Gibeonites to death' " (II Samuel 21:1). The Gemara, <i>Yevamot</i> 78b, quite cogently poses the question: Where is it related that Saul killed the Gibeonites? In point of fact, Saul committed no untoward act against the Gibeonites. The Gemara replies that although Saul did not kill the Gibeonites, he did annihilate the priests who were the inhabitants of the city of Nob. The Gemara further indicates that the Gibeonites were servants of the priests and, in return for their labor, they received their sustenance from the priests. Subsequent to the destruction of Nob, the Gibeonites who were dependent upon the priests for food and drink, no longer had a source of sustenance and consequently a number of them perished. Since Saul was, at least indirectly, responsible for their death, Scripture regards him as culpable for the demise of the Gibeonites. 
  King David was now apprised of the transgression for which his people were punished. He sought to make amends and called the Gibeonites and asked of them, "What shall I do for you and wherewith shall I make atonement, that you may bless the inheritance of the Lord?" (II Samuel 21:2). The Gibeonites declined to accept gold or silver in expiation for Saul's transgression or as compensation for the harm and grief that they had suffered. But Saul was no longer alive and could not be punished. Instead they demanded, "… let seven men of his sons be delivered unto us and we will hang them up unto the Lord in Gibeah of Saul, the chosen of the Lord" (II Samuel 21:6). David's response was immediate and forthright: "and the king said, 'I will deliver them' " (II Samuel 21:6). Scripture then proceeds to describe how David caused the grandchildren of Saul to pass before the <i>urim ve-tumim</i> and how he delivered to the Gibeonites the seven individuals selected by the <i>urim ve-tumim</i>. Assuredly, King David would not have acceded to the demands of the Gibeonites had there not been a clear indication of divine approval. Nevertheless, the Gemara questions the inherent propriety of such a course of action. "Fathers shall not be put to death for children, neither shall children be put to death for fathers" (Deuteronomy 24:16). The Gemara answers, "Rabbi Hiya the son of Abba said in the name of Rabbi Yonatan, 'Better that a letter be eradicated from the Torah than that the Divine Name be publicly profaned.' " Rashi, commenting upon the nature of the <i>ḥillul ha-Shem</i> (profanation of the Divine Name) which David sought to avert, explains that failure to exact punishment for the death of the Gibeonites would, in and of itself, constitute profanation of the Divine Name in the eyes of the world. Gentile nations would conclude that the Jewish people had acted unjustly in allowing strangers to be deprived of their livelihood without in any way avenging the evildoers. 
  Saul had harmed the Gibeonites only indirectly and unintentionally. Yet failure to punish the individual bearing even remote responsibility for their plight is deemed by the Gemara to constitute <i>ḥillul ha-Shem</i>. It maybe deduced that, <i>a fortiori</i>, any act which directly leads to loss of gentile life would certainly be regarded as a profanation of the Divine Name and that such transgression is only compounded by failure to punish the perpetrators of such a crime. 
  This concern is clearly reflected in the comments of R. Meir Simchah ha-Kohen of Dvinsk in his biblical commentary, <i>Meshekh Hokhmah, Parshat Mishpatim. Meshekh Hokhmah</i> explains why it is that the Bible does not provide for capital punishment for the murder of a non-Jew. <i>Meshekh Hokhmah</i> remarks that taking the life of a non-Jew is both an act of homicide and a profanation of the Divine Name. Neither <i>Yom Kippur</i> nor suffering atones for the transgression involved in profaning the Divine Name: expiation is possible only upon the death of the evildoer. Were the individual who takes the life of a non-Jew to receive the death penalty at the hands of a human court as punishment for the act of homicide it would serve as atonement for that crime only. As a result his death would not serve as expiation for the even graver transgression of profanation of the Name of God. Therefore punishment for the murder of a non-Jew is imposed only at the hands of Heaven. According to <i>Meshekh Hokhmah</i>, the killing of a non-Jew is not a crime punishable at the hands of a human court, not because it is a less severe infraction than the murder of a Jew, but, on the contrary, because the infraction is so grave that it cannot be expiated by means of terrestrial punishment. 
  The application of these sources to acts of terrorism committed by Jews against non-Jews is clear. The question is not the guilt or the innocence of those who stand accused. That is a matter to be determined by an appropriate judicial body in accordance with due process of law. Assuredly, every person is presumed innocent until proven guilty and the rights of the accused must be vigorously safeguarded. But it is undeniable that acts of terrorism did take place and those acts were committed by some person or persons. Such actions must be condemned as violating both the letter and spirit of Jewish law. Moreover, it is clear that, if the identity of the perpetrators is known, failure to bring those individuals to justice would constitute a <i>ḥillul ha-Shem</i> in the eyes of all. 
  There is no question that the deeds committed were heinous in nature. Self-defense may be sanctionable under appropriate circumstances. Elimination of individuals who seek to spill the blood of innocent victims may also be sanctioned in some circumstances. But those considerations do not justify either collective punishment or acts of terror committed against entirely innocent persons. A hand grenade cast into a building of an Arab university causes indiscriminate damage and takes the lives of entirely guiltless students. A time bomb placed on a bus and designed to explode at an hour at which there are a maximum number of passengers is clearly designed to take the lives of innocent victims. Regardless of the motivation of the perpetrators, regardless of their idealism and self-sacrifice, such acts cannot be sanctioned. The only way in which the profanation of the Divine Name which has already occurred can be rectified is by resolute condemnation of such wanton acts of terrorism. 
  Above all, we must foster a moral climate in which acts of terrorism are anathema. The Psalmist calls out, " <i>Yitamu ḥata'im min ha-arez</i>—Let evil deeds cease from the earth" (Psalms 104:35). The Gemara, <i>Berakhot</i> 10a, underscores the use of the word <i>ḥata'im</i> in commenting, <i>"Mi ketiv ḥot'im, ḥata'im ketiv,"</i> i.e., we pray for the eradication of evil deeds, but not of evildoers. Even in administering punishment, the purpose is not retribution but prevention. Public condemnation and censure are essential lest silence be regarded as approval. And approval, Heaven forbid, can only lead to further violence. 
  Physicians' Strikes
  A lengthy strike on the part of medical practitioners in Israel during the spring and summer of 1983 ended with both sides agreeing to submit all disputes with regard to salary and hours of service to binding arbitration. However, the refusal of physicians to treat patients over an extended period of time raised serious questions concerning the ethical stance of the participants in the strike. Indeed, individual doctors were faced with the moral dilemma of allowing their patients to go untreated or of undermining the solidarity of the profession and incurring the professional and personal ire of colleagues. Many physicians sought halakhic guidance with regard to this issue. In a two-part article published in <i>Ha-Tzofeh</i>, 15 Sivan and 22 Sivan 5743, the former Chief Rabbi, Rabbi Shlomoh Goren, discloses the advice he gave physicians who consulted him and the halakhic reasoning upon which his counsel was based. 
  Jewish law, as recorded in <i>Shulḥan Arukh, Hoshen Mishpat</i> 133:3 and <i>Shakh, Hoshen Mishpat</i> 333:14, grants workers the right to abrogate labor contracts unilaterally although, under certain conditions, a worker may be liable for consequential damages sustained by the employer. The Gemara, <i>Baba Mezi'a</i> 7a, categorizes compelling a worker to abide by his agreement as a form of involuntary servitude forbidden by Jewish law. Hence, a laborer may withdraw from his employment "even in the midst of the day." According to all authorities, a worker is under no obligation to perform any service subsequent to the expiration of the stipulated period of employment, even though failure to accept a renewal of the contract will result in financial loss to the employer. 
  A physician is entitled to receive a fee for his services. Ramban, in his <i>Torat ha-Adam</i>, explains that although the physician is bound to treat the patient by virtue of divine command and, ordinarily, no compensation may be demanded for an act which constitutes the fulfillment of a <i>mizvah</i>, the physician is nevertheless entitled to compensation for physical travail and for expenditure of time during which he might be gainfully employed in some other occupation. However, he may not charge a fee simply for sharing his knowledge and expertise with the patient. Although it is forbidden for the physician to demand an exorbitant fee, there is disagreement among early authorities with regard to whether an agreement to pay an inordinately high fee is actionable. Ramban rules that, although it is immoral for the physician to exact such a promise, the physician may nevertheless legally collect whatever sum has been stipulated. 
  During the early period of the strike, the physicians declined to report for duty at hospitals and government-sponsored medical facilities, but established their own clinics in which they treated patients on a fee per visit basis. Although this placed a financial burden upon patients deprived of the benefits of socialized medicine, Rabbi Goren finds nothing objectionable in this action taken by the doctors since all patients in need of medical attention were treated. 
  This course of action did not have the desired effect and did not lead to acquiescence by the government to the demands of the physicians. In Israel, with the exception of several small proprietary hospitals and four voluntary hospitals under private sponsorship (Hadassah, Shaare Zedek, Bikur Cholim and Laniado), all hospitals are government-operated. The government, however, establishes salary scales which are imposed upon voluntary hospitals as well. Since the government adamantly refused to accede to their demands, during the latter period of the strike the physicians declined to see patients even on a private basis. 
  Under Jewish law the treatment of a patient is not merely a matter of private contract but constitutes a religious obligation. Refusal to treat a patient in need of medical assistance is a clear violation of Jewish law. <i>Shulḥan Arukh, Yoreh De'ah</i> 336:1, declares, "If the physician withholds his services it is considered as shedding blood." The obligation to render assistance in life-threatening situations is predicated upon the verse, "Nor shall you stand idly by the blood of your fellow" (Leviticus 19:16). A further obligation is predicated upon the scriptual exhortation with regard to restoration of lost property, "and you shall restore it to him" (Deuteronomy 22:2). On the basis of a pleonasm in the Hebrew text, the Gemara declares that this verse includes an obligation to restore a fellow man's body as well as his property. Hence, there is created an obligation to come to the aid of one's fellow man in a life-threatening situation. Every individual, insofar as he is able, is obligated to restore the health of a fellow man no less than he is obligated to restore his property. 
  A latter-day authority, R. Yehudah Leib Zirelson, <i>Teshuvot Azei ha-Levanon</i>, no. 61, cogently argues that these obligations apply under non-life-threatening circumstances no less than in life-threatening situations. The verse "and you shall restore it to him" 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 demonstrates 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, in order to prevent his fellow from sustaining a financial loss. This obligation is recorded by Rambam. <i>Hilkhot Rozeaḥ</i> 1:13; <i>Sefer ha-Hinnukh</i>, no. 237; and <i>Shulḥan Arukh, Hoshen Mishpat</i> 426:1. It similarly follows that a person is bound by the selfsame commandments to prevent loss or deterioration of 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, Ramban, in <i>Torat ha-Adam</i>, observes that 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 by no less than four separate <i>mizvot</i> to render medical assistance. 
  When his services are requested by a patient, a physician may not decline to treat the patient requesting his services even if other competent and equally qualified physicians are available to provide medical services. The Palestinian Talmud, <i>Nedarim</i> 4:3, declares, "Not by every person is an individual privileged to be cured." Medical diagnosis and treatment is an art and the personal dynamic between doctor and patient may play a crucial role in any given case. The confidence which a patient has in his physician may itself be a crucial element in therapeutic efficacy. Accordingly, Halakhah provides, for example, that, when his services are specifically requested, a physician may violate <i>Shabbat</i> restrictions in traveling to reach a patient even though another physician may be available to treat the patient without the need for any violation of Sabbath laws. The identical considerations preclude refusal on the part of a physician to attend a patient because of the doctor's own personal or financial considerations. 
  The administration of Laniado hospital claims that, in accordance with halakhic norms, its staff provided a full complement of medical services during the entire period of the strike.9<i class="footnote">See <i>Lanaido Hospital News</i>, Spring 1984, p. 1; <i>The Jewish Press</i>, June 24, 1983, p. 46; and <i>Yedi‘ot Aḥaronot</i>, June 28, 1983, p. 4; and <i>The Jerusalem Post</i>, February 1, 1988, p. 1.</i> In declining to participate in strike action, the members of the medical staff of Laniado hospital complied with the halakhic ruling issued by the Klausenburger Rebbe, the spiritual leader of Kiryat Sanz, under whose aegis the hospital is administered. Rabbi Goren similarly counseled the doctors who consulted him that the dictates of Halakhah required them to return to duty. However, in light of the fact that the physician may charge a fee for his services, he advised that they announce in advance the fees demanded for their services. Rabbi Goren asserts that, under such circumstances, their demands would be actionable in accordance with the provisions of Halakhah. 
  Given the realities of the situation, the halakhic cogency of Rabbi Goren's advice with regard to financial compensation is not a pressing issue. Unfortunately, the striking physicians had no reason to believe that their employer, the Israeli government, would abide by the provisions of Jewish law in meeting the physicians' demands for compensation. Practically speaking, Rabbi Goren's advice amounts to a ruling requiring the physicians to return to work without any guarantee of a settlement favorable to them. 
  Nevertheless, it should be noted that Rabbi Goren's statement to the effect that, if the physician stipulates his fee in advance, he may compel payment in full, is correct as a general principle only if the amount stipulated is consistent with the halakhic principle which provides that a physician is entitled to compensation solely for physical exertion and time expended. An inordinate fee is collectible only if there are other physicians available who are equally competent with regard to the treatment of the specific illness for which the physician's services are sought. Rema, <i>Yoreh De'ah</i> 336:3, emphasizes that the physician may legally, if not morally, collect any fees stipulated in advance because even though he acts in fulfillment of a <i>mizvah</i>, his obligation with regard to the <i>mizvah</i> is no greater than that of any other physician and hence he may plead that the obligation is not incumbent upon him specifically. This, of course, is not the case if the doctor in question is the sole physician in the city or if he is in any manner uniquely competent to treat the malady. Accordingly, <i>Teshuvot Radbaz</i>, III, no. 556, rules that all authorities are in agreement that, if no other physician equally competent to treat the illness is available, the doctor cannot collect the stipulated fee if it is exorbitant. A later authority, <i>Ẓedah la-Derekh, ma'amar</i> 5, <i>klal</i> 2, chap. 2, counsels that standing upon one's rights in such circumstances may, at some future time, result in the doctor refusing to treat patients when he feels that the patient may not pay his fee.10<i class="footnote">Cf., R. Eliezer Waldenberg, <i>Ramat Raḥel</i>, no. 25.</i>
  There is, moreover, one additional consideration which Rabbi Goren overlooks. The physician who stipulates his fee in advance may collect the amount stipulated because acceptance of his services is to be construed as acquiescence to the terms stipulated. Such constructive acquiescence is inferred because the patient accepts the benefit conferred without demur. However, in the Israeli dispute, the doctors sought compensation, not from the patients, but from the government, or from the hospitals which employ them. The government might counter with the argument that, since it receives no direct benefit from the physicians' services, failure to engage in a lockout does not constitute acquiescence. The hospitals would, of course, contend that the level of compensation is set by the government and they are not legally free to contract for any modification of the salary scale set by government authorities. 
  Moreover, the government (and the hospitals) might plead that, absent a formal undertaking to make the payments on behalf of the patients, the physicians have no claim whatsoever upon the government. In the unlikely event that the Israeli government would agree to submit the matter to a <i>din Torah</i> these conflicting claims would of necessity be adjudicated by the <i>Bet Din</i>. 
  One aspect of Rabbi Goren's ruling obligating the doctors to return to their posts requires further comment. A physician may indeed not refuse to provide treatment when treatment is required by the patient and requested of that particular physician. However, an individual physician might circumvent any obligation which might devolve upon him by removing himself from situations in which his aid might be sought. In fact, at one point during the strike, the government ordered the physicians to return to duty upon pain of penal sanctions. The physicians attempted to avoid accepting service of those orders by making themselves physically unavailable. In a similar manner, in order to avoid incurring any halakhic obligations, they might make themselves unavailable to their patients by going away on vacation or by otherwise removing themselves geographically from their patients. Although the lives of patients might be endangered by such a course of action, each individual physician might plead that, since other doctors are capable of caring for the patients, he is under no personal obligation to make his services available. While, to be sure, such conduct would not merit approbation, it appears that the physician who acts in such a manner would technically not be guilty of a halakhic infraction. 
  Nevertheless, there is a method by which society can assure that medical services are provided on behalf of its members. Physicians can indeed be compelled to make themselves available for the treatment of patients. Such obligation with regard to providing treatment is quite independent of any claims they may have with regard to compensation for services rendered. Rema, <i>Yoreh De'ah</i> 261:1, rules that a <i>mohel</i> may be compelled to circumcise a child without compensation if the father cannot pay the <i>mohel</i>'s fee. R. Eleazar Fleckles, <i>Teshuvah me-Ahavah</i>, III, no. 408, in his comments on <i>Yoreh De'ah</i> 336:2, rules that the <i>Bet Din</i> may similarly compel a physician to treat an indigent patient without a fee. Rema explains that, in the absence of a father who is capable of fulfilling the precept, the <i>Bet Din</i> is obligated to circumcise the infant. This must be understood as meaning that society itself is obligated to discharge the responsibility of circumcising the child and does so through the <i>Bet Din</i> which in this regard serves in an administrative capacity. Similarly, although no individual member of society may be obligated to provide for the medical needs of needy patients, society itself does have such an obligation. Hence, the <i>Bet Din</i>, or the appropriate administrative agency, may compel a medical practitioner to make his services available.11<i class="footnote">Cf., <i>Ramat Raḥel</i>, no. 24, sec. 3.</i> R. Elijah of Vilna, <i>Bi'ur ha-Gra, Yoreh De'ah</i> 261:7, declares that the <i>Bet Din</i> may direct the <i>mohel</i> to circumcise the child by virtue of its general power and obligation to compel performance of a <i>mizvah</i>. The selfsame consideration would empower the <i>Bet Din</i> to direct a physician to provide medical care. Rabbi Waldenberg, <i>Ramat Raḥel</i>, no. 24, sec. 6, quite logically states that when more than one qualified <i>mohel</i> is available, the <i>Bet Din</i> must apportion the burden of circumcising the children of indigent parents among the various <i>mohalim</i>. The identical considerations would require that society assure that the burden of providing medical care be shared equitably by all physicians qualified to render such service. Hence the <i>Bet Din</i> might direct striking physicians to provide for the immediate needs of patients requiring medical attention. The <i>Bet Din</i> would then be duty-bound to call upon the services of all qualified physicians and to arrange that duty rosters be prepared in a fair and equitable manner. Physicians are, of course, duty-bound to obey the directives of the <i>Bet Din</i> in such matters. The obligation to render care in such manner is in no way contingent upon satisfaction of any monetary claims the physicians may have upon either society or their patients. 
  An interesting point regarding the level of services which must be provided is reflected in a letter addressed to the medical staff of Shaare Zedek Hospital signed by two leading rabbinic authorities and published in the Kislev 5744 issue of <i>Assia</i>. The signators, Rabbi Yitzchak Ya'akov Weiss and Rabbi Shlomoh Zalman Auerbach, report that it had come to their attention that the number of physicians available to treat patients fell below the number of physicians customarily on duty on <i>Shabbat</i>. Assuming that the <i>Shabbat</i> staff is the minimum necessary for purposes of <i>pikuaḥ nefesh</i>, those authorities declared that the members of the medical staff are obligated to assure the presence of medical personnel "not fewer [in number] than on the holy Sabbath days." Citing <i>Shulḥan Arukh, Yoreh De'ah</i> 336:1, Rabbi Weiss and Rabbi Auerbach admonished that "a physician who withholds himself from healing is guilty of bloodshed." In a subsequent letter which also appears in <i>Assia</i>, the same authorities emphasize that a physician may not withhold his services even in a situation in which he is called upon to treat patients because his colleagues, in violation of Halakhah, have refused to do so. 
  It should, however, be noted that it is unlikely that minimum staffing could be maintained for any significant period of time without placing the lives of patients in jeopardy. Hence maintaining medical staff at the <i>Shabbat</i> level for longer than a brief period of time would not satisfy the requirements of Halakhah. 
  In the same letter Rabbis Weiss and Auerbach advised that physicians may not participate in a hunger strike in order to draw attention to their demands for two reasons: (1) Any course of action which is deleterious to health constitutes a form of "wounding" and is <i>ipso facto</i> forbidden. 
  (2) Physical weakness induced by fasting would undoubtedly compromise the quality of care which patients would receive. A medical practitioner who provides inferior care, they assert, is also deemed to be a physician who "withholds himself from healing" and is "guilty of bloodshed."
  Conversely, those physicians to whom medicine is a sacred calling who, conducting themselves in accordance with the norms of Halakhah, not only declined to participate in strike action but also shouldered the burden thrust upon them by absent colleagues, earned the reward vouchsafed to those who "preserve a life of Israel" and the esteem of all. 
  
  Chapter II Travelers
  
  <i>Whosoever embarks upon a journey and is not accompanied by matters of Torah endangers himself.</i>
  ZOHAR, BEREISHIT 89
  Ritual laws, dietary restrictions and a code of behavior governing virtually every facet of daily life effectively force a Jew to establish a life-style in which the requirements of Jewish law will not become so onerous as to restrict daily activities unduly. The accouterments and conveniences of home serve to obviate many difficulties. Unless plans are carefully made in advance, the traveler, more likely than not, will find that halakhic restrictions severely compromise both the benefits and pleasures of travel. Nevertheless, despite the arduous nature of travel, Jewish law provides extremely few concessions or exceptions for the traveler. Frequently, the obligations placed upon the traveler are rendered even more difficult by virtue of considerations arising from a change of time and locale. 
  Yet, from its very inception, the Jewish people has always been a nation of travelers. It is almost as if the nomadic journeys of Abraham, the flight of Jacob to the house of Laban and his subsequent descent to Egypt and the Exodus and wandering of Israel in the wilderness had the effect of imbuing the national spirit of Israel with a pervasive <i>Wanderlust</i>. Certainly, following the destruction of the Temple and the dispersion of Israel, Jews could no longer feel a sense of permanence and, as a result, felt few psychological barriers to travel for any and every purpose. 
  Nor should it be forgotten that persecution and denial of liberties taken for granted by others forced Jews to become an itinerant people. Since most other modes of earning a livelihood were closed to them, they perforce became a mercantile nation. Long and arduous journeys became necessary to procure goods for resale by means of even more onerous peddling of merchandise from place to place in order to realize a profit. Travel became a way of life. 
  No less significant from the historical perspective is the phenomenon of travel for purposes of study and the broadening of intellectual vistas. Throughout the ages, the advice of the Sages of the Mishnah, "Go as an exile to a place of Torah" (<i>Ethics of the Fathers</i> 4:14), was accepted and acted upon by significant numbers of students and scholars many of whom spent long periods of time away from their homes and families. 
  With the establishment of the State of Israel and the reemergence of the Land of Israel as a major center of Torah scholarship, more and more students and aspiring scholars are prompted to spend varying periods of time during their formative years studying in <i>Erez Yisra'el</i>. The very existence of the State of Israel has served as a magnet attracting tourists, visitors and temporary residents seeking to share even marginally in the sanctity of the Land of Israel. 
  Little wonder, then, that embodied both in the annals of Jewish law and in its current literature there exists a vast and rich corpus of material devoted to the unique problems and difficulties faced by travelers in their unflagging commitment to adjust their lives—and travels—to the manifold requirements of Halakhah. 
  Birkat ha-Gomel and Tefillat ha-Derekh for Air Travelers
  The Gemara, <i>Berakhot</i> 54b, records: "There are four [classes of people] who must offer thanksgiving: those who cross the sea; those who travel through deserts; one who has been sick and has recovered; and one who has been incarcerated in prison and has emerged." Rambam, <i>Hilkhot Berakhot</i> 10:8, substitutes the term "wayfarers" (<i>holkhei derakhim</i>) for "those who travel through deserts." According to Rambam, safe completion of even an intercity journey necessitates recitation of this blessing. The Gemara adduces biblical verses expressing praise of God for deliverance from each of these dangers. Accordingly, some authorities maintain that <i>birkat ha-gomel</i>, the blessing of thanksgiving, is to be recited only in conjunction with the four specifically enumerated forms of deliverance. According to this position, the verses reflect commonly encountered forms of danger and the rabbinic regulation prescribing the blessing is similarly limited to those frequent forms of divine deliverance. Other authorities maintain that the phenomena described are not exhaustive and that the blessing was ordained for recitation upon deliverance from any form or danger, e.g., from the collapse of a wall upon an individual, the attack of a wild beast, the goring of an ox, etc. <i>Shulḥan Arukh, Oraḥ Hayyim</i> 219:9, records both opinions and rules that, in instances of deliverance from a danger not included among the four categories explicitly enumerated by the Gemara, it is preferable to pronounce the blessing but with the omission of both the Divine Name and of the reference to God as King of the universe. Later authorities rule entirely in accordance with the first opinion cited by <i>Shulḥan Arukh</i>, i.e., that a blessing must be pronounced upon deliverance from any form of danger. Hence, in view of the fact that a blessing without invocation of the Divine Name and reference to God as King of the universe is of no halakhic import, those authorities require recitation of the blessing in its usual form upon deliverance from any form of danger. It should be emphasized that such blessings are not discretionary; they are either required by virtue of rabbinic edict or are forbidden as an unwarranted invocation of the Divine Name. 
  The question of whether <i>birkat ha-gomel</i> should be recited upon safe completion of an airplane flight was first addressed in the very early days of air travel by R. David Zevi Katzberg, editor of the Hungarian Torah journal <i>Tel Talpiyot</i>, in the Tammuz 5694 issue of that publication. Rabbi Katzberg sees no reason to recite <i>birkat ha-gomel</i> upon safe completion of a short intercity flight since Rema, <i>Oraḥ Hayyim</i> 219:7, rules, contrary to Rambam's position, that no such blessing is required subsequent to interurban surface travel. He further notes that "even when traveling by boat from Pest to Vienna and the like we have never heard that <i>ha-gomel</i> is recited." However, the same author states that circumnavigation of the globe, flight at an inordinately high altitude, or any other dangerous form of flight, does necessitate recitation of <i>birkat ha-gomel</i>. These rulings seem to be entirely unexceptionable: According to Rema's ruling, ordinary intercity travel does not occasion this blessing, while latter-day authorities rule that even activities other than travel necessitate recitation of the blessing when danger of some sort has been encountered. At the time that Rabbi Katzberg's article was published, round-the-world flight and travel at high altitudes certainly entailed a high degree of danger. The crucial question is whether an uneventful transoceanic flight or a flight over a desert generates an obligation with regard to <i>birkat ha-gomel</i>. That question is not at all addressed by Rabbi Katzberg. Such an obligation may follow simply from the fact that air travel is no different from travel by land or sea. Hence, even though the journey has been by air, the traveler who has traversed either a sea or a desert may be obligated to recite the blessing as a member of one of the four specifically enumerated categories of people for whom the blessing is required. Alternatively, since he has traveled by air, he may not be included in those specific categories but may, nevertheless, be required to recite the blessing in accordance with the view that those categories are not exhaustive but that the blessing is obligatory for all persons delivered from danger. 
  R. Ovadiah Yosef, <i>Yabi'a Omer</i>, II, <i>Oraḥ Hayyim</i>, no. 14, sec. 2, and R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, XI, no. 14, correctly note that transoceanic flight would not occasion <i>birkat ha-gomel</i> by virtue of the second consideration. Even those authorities who maintain that the classes of persons enumerated by the Gemara as being required to recite the blessing are not exhaustive concede that these classes are not merely paradigmatic. Members of the enumerated classes are required to recite the blessing even if they have not met with any untoward experience and have themselves not been endangered in any way.1<i class="footnote">See <i>Shulḥan Arukh, Oraḥ Ḥayyim</i> 218:8. This view is, however, disputed by Me’iri, <i>Berakhot</i> 54b, who, in accordance with a literal reading of the verses cited by the Gemara, maintains that only travelers who lose their way in the desert or sea voyagers who have been threatened by turbulent waves are required to recite <i>birkat ha-gomel</i>. Among latter-day authorities this position is espoused by R. Eliezer Landau (a grandson of <i>Noda bi-Yehudah</i>) in his commentary on the <i>Mishneh Torah, Yad ha-Melekh, Hilkhot Berakhot</i> 10:8.</i> The fact that other persons frequently do experience danger under similar circumstances is sufficient to establish a blanket obligation for all members of those classes. Deliverance from other dangers, according to the opinion of those authorities, similarly occasions recitation of the blessing, but only if the person in question was actually endangered.2<i class="footnote">This distinction does not appear to have been fully appreciated by R. Mordecai Fogelman, <i>Teshuvot Bet Mordekhai</i>, no. 22. However, insofar as his halakhic position is concerned, Rabbi Fogelman’s conclusions concur with those of Rabbi Yosef and Rabbi Waldenberg. There also appears to be some confusion with regard to this point in the initial comments of R. Isaac Liebes, <i>Teshuvot Bet Avi</i>, I, no. 37.</i> Thus a routine flight over a sea or desert would not require <i>birkat ha-gomel</i> on those grounds. Nevertheless, both Rabbi Yosef and Rabbi Waldenberg rule that a flight over an ocean or over a desert necessitates recitation of <i>birkat ha-gomel</i>. They reason simply that since a sea or desert has been traversed in the course of the journey the mode of travel is irrelevant, particularly since air travel is no less dangerous than surface travel. A similar view is ascribed to the late Satmar <i>Rav</i>, R. Joel Teitelbaum, by R. Ya'akov Breisch in an article that appeared in the Tammuz 5716 issue of <i>Ha-Ma'or</i> and is reprinted in Rabbi Breisch's responsa collection, <i>Helkat Ya'akov</i>, II, no. 9. R. Pincus Epstein, the late head of the <i>Bet Din</i> of Jerusalem's <i>Edah ha-Haredit</i>, also concurred in this ruling as is recorded in his glosses appended to R. Betzalel Stern's <i>Teshuvot be-Ẓel he-Hokhmah</i>, I, p. 190b. 
  R. Moses Feinstein, <i>Iggerot Mosheh, Oraḥ Hayyim</i>, II, no. 59, reaches a similar, but more far-reaching conclusion, albeit on somewhat different grounds. <i>Iggerot Mosheh</i> argues that, although the danger encountered in the wilderness is essentially accidental in nature, the danger inherent in sea voyages that serves as a basis of the obligation for thanksgiving is not the danger occasioned by a storm or an accident of some type. Rather, asserts <i>Iggerot Mosheh</i>, the very nature of travel in a ship is intrinsically dangerous because man cannot survive for a significant period of time in water; it is the ship that serves to protect the traveler from the danger of the sea surrounding him. Since, at times, the ship may prove to be unseaworthy, the ocean voyager is always at risk. The identical consideration, argues <i>Iggerot Mosheh</i>, applies to airplane travelers. Man cannot survive in the sky; it is only the airplane which protects him from danger. Since the airplane may malfunction, the air passenger is always at risk. Hence, concludes <i>Iggerot Mosheh</i>, an airplane traveler must recite the <i>birkat ha-gomel</i> for precisely the same reason that a sea voyager recites that blessing. 
  <i>Iggerot Mosheh</i> goes beyond other authorities in ruling that <i>birkat ha-gomel</i> is required subsequent to any plane journey, including those undertaken entirely over dry land. This conclusion is entirely consistent with his thesis concerning the consideration which prompts <i>birkat ha-gomel</i> for ocean voyagers. According to <i>Iggerot Mosheh</i>'s reasoning, the danger of travel in the sky is entirely analogous to the danger of ocean travel. Accordingly, every airplane trip is tantamount to a sea journey. <i>Iggerot Mosheh</i> does not stipulate any minimum distance or minimum period of travel for incurring an obligation with regard to <i>birkat ha-gomel</i>. If there is no minimum distance or time period and if <i>Iggerot Mosheh</i>'s reasoning is taken to its logical conclusion, it would appear that a ride in a funicular, or even on a ferris wheel, would similarly require recitation of <i>birkat ha-gomel</i>. 
  A somewhat different position is espoused by Rabbi Ovadiah Yosef. Halakhah requires that, during the course of his travel, the traveler recite <i>telfillat ha-derekh</i>, the wayfarer's prayer beseeching that he be granted a safe journey and delivered from any danger. As recorded in <i>Shulḥan Arukh, Oraḥ Hayyim</i> 110:7, that prayer is recited only upon embarking on a voyage of at least one parasang in length.3<i class="footnote">A parasang or <i>parsah</i> is equal in distance to 4 <i>mil</i> or 8,000 cubits. Based upon R. Abraham Chaim Noe’s calculation of the measurement of a cubit or <i>amah</i> as 48 centimeters (as presented in his <i>Shi‘urei Torah</i> 3:25), a parasang is equal in length to 3,840 meters. According to <i>Ḥazon Ish</i>’s calculation of an <i>amah</i> as 58 centimeters (as presented in <i>Ḥazon Ish, Kuntres ha-Shi‘urim, Oraḥ Ḥayyim</i> 39:12), a parasang is equal to 4,640 meters. See also R. Ya‘akov Kanievsky, <i>Shi‘urim shel Torah</i> (Bnei Brak, 5729), p. 67. According to some early authorities, the <i>amah</i> may be 59.5 centimeters in measurement and yield a <i>parsah</i> of 4,760 meters in length. See R. Ya‘akov Gershon Weiss, <i>Middot u-Mishkalot shel Torah</i> (Jerusalem, 5747), p. 382.</i> <i>Shulḥan Arukh, Oraḥ Hayyim</i> 219:7, rules that the same distance constitutes the minimum length of a voyage necessitating <i>birkat ha-gomel</i>. A number of authorities, including <i>Petaḥ ha-Devir</i>, III, 313b; <i>Teshuvot Yismaḥ Lev</i>, II, no. 4; and <i>Sedei Hemed, Ma'arekhet Berakhot</i>, no. 2, sec. 15, no. 42, also maintain that <i>birkat ha-gomel</i> must be recited subsequent to a train trip of at least one parasang in distance even though the distance is traversed much more rapidly than would be the case with a more primitive form of travel. However, R. Judah Grunwald, <i>Teshuvot Zikhron Yehudah, Oraḥ Hayyim</i>, no. 42, asserts that the stipulated distance of a parasang is the normative minimum only for an individual who travels by foot. However, rules <i>Zikhron Yehudah</i>, when traveling by motor vehicle, there is no similar obligation with regard to <i>birkat ha-gomel</i> unless the journey is of a time period equal to that which it would take for an individual to traverse a parasang by foot. The period or time required for an average person to cover a parasang by foot is established as an hour and twelve minutes. <i>Yabi'a Omer</i>, I, <i>Oraḥ Hayyim</i>, no. 13, sec. 9, rules in accordance with the opinion of <i>Zikhron Yehudah</i>. This is also the opinion of Rabbi Y. A. Silber, <i>Oz Nidberu</i>, VI, no. 66.4<i class="footnote"><i>Zikhron Yehudah</i> adopts the same position with regard to <i>tefillat ha-derekh</i> as well. Insofar as <i>tefillat haderekh</i> is concerned, <i>Zikhron Yehudah</i>’s position is contrary to that of <i>Mishnah Berurah</i> 110:30 and R. Ya‘akov Kanievsky, <i>Shi‘urim shel Torah</i>, no. 10, addenda, sec. 33. Rabbi Silber distinguishes between <i>tefillat ha-derekh</i> and <i>birkat ha-gomel</i> in maintaining that <i>tefillat ha-derekh</i> is recited upon traveling a minimum distance of one parasang regardless of the mode of transportation employed, while <i>birkat ha-gomel</i> is pronounced only upon completion of a journey of at least seventy-two minutes in duration. <i>Tefillat ha-derekh</i> is recited because roads are regarded as dangerous due to the presence of brigands, wild animals, etc. Such dangers are not present, or are greatly reduced, in inhabited areas and their environs, i.e., within a parasang of a city. Hence, since areas lying beyond a parasang are inherently dangerous, <i>tefillat ha-derekh</i> is always recited on journeys which take the traveler beyond that distance, even though the distance is traversed with great speed. However, <i>birkat ha-gomel</i> is not recited unless the journey is at least seventy-two minutes in duration, argues Rabbi Silber, since, when less time is spent in travel, the danger is too brief for deliverance to be regarded as “miraculous.” Although Rabbi Yosef cites <i>Zikhron Yehudah</i> with regard to both <i>birkat ha-gomel</i> and <i>tefillat ha-derekh</i>, Rabbi Yosef’s own discussion is limited to <i>birkat ha-gomel</i>.</i> In <i>Yabi'a Omer</i>, II, <i>Oraḥ Hayyim</i>, no. 14, sec. 3, and in <i>Yeḥaveh Da'at</i>, II, no. 26, Rabbi Yosef similarly rules that <i>birkat ha-gomel</i> must be recited subsequent to any flight of at least one hour and twelve minutes in duration. Rabbi Yitzchak Ya'akov Weisz, <i>Teshuvot Minḥat Yizḥak</i>, II, no. 47, correctly notes that Rabbi Yosef expresses this view in accordance with the Sephardic practice requiring <i>birkat ha-gomel</i> on the occasion of all intercity travel. Sephardic practice follows Rambam's position that, not only travel through a desert, but also any intercity journey occasions <i>birkat ha-gomel</i>. However, it follows from Rabbi Yosef's exposition, and indeed it is implicitly stated by him, that travel over a sea or desert would require recitation of <i>birkat ha-gomel</i> according to all authorities. 
  However, a number of authorities including R. Ya'akov Breisch, <i>Ha-Ma'or</i>, Tammuz 5716 and <i>Teshuvot Helkat Ya'akov</i>, II, no. 9; R. Yitzchak Ya'akov Weisz, <i>Teshuvot Minḥat Yizḥak</i>, II, no. 46; R. Betzalel Stern, <i>Teshuvot Be-Ẓel he-Hokhmah</i>, I, no. 20; and R. Isaac Liebes, <i>Teshuvot Bet Avi</i>, I, <i>Oraḥ Hayyim</i>, no. 37, and <i>Teshuvot Bet Avi</i>, IV, no. 18, sec. 4, rule that air travel does not necessitate recitation of <i>birkat ha-gomel</i>. <i>Helkat Ya'akov, Minḥat Yizḥak</i> and <i>Be-Ẓel he-Hokhmah</i> also quote the late Belzer <i>Rebbe</i>, R. Aaron Rokeah, as espousing this position as well. <i>Be-Ẓel he-Hokhmah</i> reports that the Tchebiner <i>Rav</i>, R. Dov Berish Weidenfeld, was also in agreement with this ruling. 
  An intriguing argument has been advanced in support of the view that airplane travelers should not recite the wayfarer's prayer during the course of airplane travel. That position is derived from a provision of Jewish law incorporated in the regulations pertaining to the commandment concerning sending a mother bird from its nest prior to taking nestlings or eggs. The terminology in which the commandment is couched, "If a bird's nest chance to be before you in the way" (Deuteronomy 22:6), makes it clear that this obligation exists only with regard to birds that a person comes upon on a roadway or the like. For this reason the Gemara, <i>Hullin</i> 139b, indicates that the commandment does not encompass a situation in which one comes upon a bird carrying its nest while flying:
  R. Judah said in the name of Rav, "If a man found a nest in the sea, he is bound to let the dam go since it is written, 'Thus said the Lord who makes a way in the sea' (Isaiah 43:16). Then, in the like manner, if a man found a nest in the sky inasmuch as it is written, 'The way of the eagle is in the sky' (Proverbs 30:19) he should also, should he not, be bound to let the dam go?" [The sky] is referred to as the "way of the eagle" but never simply as a "way."
  R. Shlomoh Yosef Zevin, <i>Ishim ve-Shitot</i> (Tel Aviv, 5718), p. 97, relates that, when asked whether an airplane traveler should recite <i>tefillat ha-derekh</i>, the Rogatchover Ga'on, R. Joseph Rosen, immediately and without hesitation cited this discussion and responded in the negative. The Rogatchover Ga'on maintained that the Sages ordained this prayer only for a person who travels on a <i>"derekh"</i> or "way." Since the Gemara clearly states that the sky is "the way of the eagle," but not simply a "way," recitation of the "wayfarer's" prayer, he maintained, is not within the ambit of that edict. Rabbi Zevin cites this incident as an example of the Rogatchover's keen intellect and acumen but expresses ambivalence with regard to the substantive halakhic conclusion. Rabbi Yosef, <i>Yeḥaveh Da'at</i>, II, no. 26, questions whether the Rogatchover intended his comments to be construed as a definitive ruling or whether they were intended merely as an intellectual <i>tour de force</i>. Rabbi Yosef himself rules that airplane travelers should recite <i>tefillat ha-derekh</i>. 
  A similar line of reasoning with regard to recitation of <i>birkat ha-gomel</i> subsequent to intercity air travel or a flight over a desert is advanced by <i>Helkat Ya'akov</i> without reference to the Rogatchover's ruling vis-à-vis <i>tefillat ha-derekh</i>. This analysis, which focuses upon the denotation of the term <i>"derekh,"</i> does not, however, appear to be germane with regard to <i>birkat ha-gomel</i>. As <i>Yabi'a Omer</i> points out, the terminology employed by the Gemara with regard to <i>birkat ha-gomel</i> does not include use of the term <i>"derekh."</i> Although <i>Yabi'a Omer</i> and <i>Bet Avi</i> both note that the biblical verse cited by the Gemara in conjunction with travel through a desert, "They wandered in the wilderness in a desert way" (Psalms 107:4), does employ the term <i>"derekh," Bet Avi</i> comments that such reference does not occur in the verses quoted in conjunction with travel by sea. Both authorities emphasize that the Gemara speaks explicitly of "those who travel through the desert" indicating that the rabbinic edict is not predicated upon the connotation of the term <i>"derekh."</i> Although Rambam extends the obligation to <i>"holekhei derakhim,"</i> i.e., all wayfarers, he should not be understood as employing that term in a strictly technical sense since it does not appear in the Gemara itself. Rather, Rambam simply expresses the view that the edict governing travel through a desert is not limited solely to that category of travel but includes all wayfarers. Thus, there is no reason to assume that only a person who traverses a <i>"derekh"</i> is required to recite <i>birkat ha-gomel</i>. 
  The principal argument in support of this position as formulated by <i>Helkat Ya'akov, Be-Ẓel he-Hokhmah</i> and <i>Bet Avi</i> is that the categories of sea voyagers and "those who travel through the desert" are limited by definition to travel on the surface of the sea or desert. Hence, airplane travel, even when transoceanic, is not within the ambit of the obligation established by rabbinic decree. 
  <i>Minḥat Yizḥak</i> advances the rather curious argument that it is precisely because air travel is more dangerous than other forms of travel that <i>birkat ha-gomel</i> is not required as an expression of thanksgiving for having been delivered from danger. R. Chaim Joseph David Azulai, <i>Maḥazik Berakhah</i> 219:1, questions whether or not <i>birkat ha-gomel</i> was recited by the High Priest upon emerging unscathed from the Holy of Holies on <i>Yom Kippur</i>. Indeed one does not find mention of recitation of this blessing by other historical personages who placed themselves in extreme danger with no untoward effect. <i>Maḥazik Berakhah</i> responds by stating that <i>birkat ha-gomel</i> was ordained only for deliverance from an involuntarily assumed peril but not for deliverance from a danger that is assumed in an entirely voluntary manner. <i>Minḥat Yizḥak</i> notes the objection that persons embarking upon sea voyages and caravan journeys also voluntarily place themselves in danger. In response he states that, since there is no other way of reaching the required destination, the danger is regarded as "involuntary." However, since one can reach the same destination without the enhanced danger of a plane trip, assumption of the dangers of air travel must be regarded as voluntary in nature. 
  It should also be noted that <i>Bet Avi</i> somewhat equivocally advances another argument in support of the position that airplane travel does not occasion recitation of <i>birkat ha-gomel</i>. In contradistinction to the position of <i>Iggerot Mosheh, Bet Avi</i> maintains that sea voyages occasion recitation of that blessing by virtue of deliverance from danger resulting from waves which arise in the ocean. This is evidenced by the fact that the Gemara cites the verses "They that go down to the sea in ships … He raised the stormy wind … they reeled to and fro and staggered like a drunken man … He made the storm calm so that the waves thereof were still" (Psalms 107:23-29) in establishing that seafarers are required to offer praise for their deliverance. <i>Bet Avi</i> argues that, since there are no waves in the sky and hence this danger is nonexistent with regard to air travel, there cannot be an obligation for recitation of <i>birkat ha-gomel</i> for the safe completion of a trip by air. 
  In a somewhat different vein <i>Be-Ẓel he-Hokhmah</i> argues that, since the dangers of air travel are identical whether the travel has taken place over an ocean or over dry land, there can be no logical reason for requiring transoceanic air travelers to recite a blessing not recited by persons traveling by air over dry land. The thanksgiving offered, argues <i>Be-Ẓel he-Hokhmah</i>, is for the deliverence from the particular danger associated with sea travel. Since those dangers are nonexistent with regard to airplane travel over an ocean, <i>Be-Ẓel he-Hokhmah</i> rules that there is no occasion for the recitation of <i>birkat ha-gomel</i>. 
  Nevertheless, in light of the significant doubt generated by the arguments in favor of recitation of this blessing, these authorities agree that, under such circumstances, <i>birkat ha-gomel</i> should be recited with the deletion of the Divine Name and the phrase "King of the universe."5<i class="footnote">Some authorities advise that in the case of doubtful obligation the blessing may be recited in the Aramaic form “<i>Brikh Raḥamana Mara Malka de-alma</i> ….” <i>Shulḥan Arukh, Oraḥ Ḥayyim</i> 167:10, 187:1 and 219:4, rules that the obligation with regard to various blessings may be fulfilled in this manner. In addition, many authorities maintain that a blessing recited in this manner does not constitute a <i>berakhah le-vatalah</i>, a blessing pronounced in vain. Hence, according to these authorities, this expedient may be utilized in cases of doubtful obligation. See <i>Pnei Yehoushu‘a, Berakhot</i> 12a; <i>Arukh ha-Shulḥan, Oraḥ Ḥayyim</i> 202:3; <i>Derekh Pekudekha</i>, no. 4, sec. 10; <i>Eshel Avraham</i> (<i>Rav</i> of Buczacz), <i>Oraḥ Ḥayyim</i> 229:2; <i>Teshuvot Bikkurei Shlomoh, Oraḥ Ḥayyim</i>, no. 39; <i>Sedei Ḥemed, Ma‘arekhet ha-Lamed, klal</i> 141, sec. 32; and <i>Da‘at Kedoshim</i> cited by <i>Ḥelkat Ya‘akov. Ḥatam Sofer</i> is reported to have used an Aramaic formula for <i>kiddush levanah</i> on an occasion when it was doubtful whether the blessing might be pronounced; see <i>Ha‘amek She’elah, she’ilta</i> 53, sec. 2, and <i>Ẓiẓ Eli‘ezer</i>, X, nos. 11-12. <i>Teshuvot Zekher Simḥah, Oraḥ Ḥayyim</i>, no. 232, reports that the author of <i>Teshuvot Ḥamudei Dani’el</i> recommended that this procedure be followed with regard to the blessing over the <i>arba minim</i> when there is reason to suspect that the <i>etrog</i> may be a hybrid.Nevertheless, numerous authorities maintain that a blessing in the form of <i>“Brikh Raḥamana”</i> does constitute a <i>berakhah le-vatalah</i>. See <i>Pri Megadim, Mishbeẓot Zahav</i> 219:3; <i>Teshuvot R. Akiva Eger</i>, no. 25; <i>Ḥatam Sofer</i> in his commentary on <i>Nedarim</i> 2a (which contradicts the earlier cited position attributed to <i>Ḥatam Sofer</i>); <i>Ḥavat Da‘at, Yoreh De‘ah</i> 110, <i>Bet ha-Safek</i>, sec. 20; <i>Maharam Shick al Taryag Miẓvot</i>, no. 69; and <i>Ha‘amek She’elah, she’ilta</i> 53, sec. 2. Hence, according to these authorities, the expedient of <i>“Brikh Raḥamana”</i> cannot be utilized in cases of doubtful obligation. See also <i>Iggerot Mosheh, Oraḥ Ḥayyim</i>, IV, no. 40, sec. 27.R. Moshe Sternbuch, <i>Ma‘aseh Rav he-Ḥadash</i> (Bnei Brak, 5740), <i>Hanhagot Ba‘al ha-Parnes</i>, sec. 38, cites sources in support of the position that the Aramaic formula is efficacious for purposes of fulfilling obligations regarding blessings only in a locale in which Aramaic is the vernacular.<i>Teshuvot Rivash</i>, no. 408, advises reciting “<i>Barukh atah ha-Shem</i> …” in all cases of doubtful obligation. Utilization of the term <i>“ha-Shem”</i> presents no problem of pronouncement of the Divine Name since it is not a vernacular term for the Deity but means simply “the Name.” Nevertheless, <i>Teshuvot Rivash</i> maintains that use of this term fulfills the requirement for incorporation of the Divine Name in a blessing. This expedient is recommended by <i>Ḥelkat Ya‘akov</i> for recitation of <i>birkat ha-gomel</i> subsequent to trips by air. For yet another expedient in cases of doubtful obligation, see <i>Pitḥei Teshuvah, Yoreh De‘ah</i> 328:1.</i>
  Recitation of Ve-Ten Tal u-Matar by Travelers
  The ninth blessing of the Eighteen Benedictions is a general prayer for agricultural bounty. The Men of the Great Assembly who composed the benediction ordained that a supplication on behalf of rain, viz., <i>"ve-ten tal u-matar livrakhah</i> and bestow dew and rain for a blessing" be incorporated in the blessing throughout the rainy season. The dates marking the beginning and the close of the rainy season, during which period the prayer must be recited, were carefully defined. The Gemara, <i>Ta'anit</i> 10a, declares that recitation of <i>ve-ten tal u-matar</i> should begin on the sixtieth day of the autumn season, i.e., the season which commences on the day of the autumn equinox. Recitation of <i>ve-ten tal u-matar</i> continues throughout the winter months until the Passover holiday. 
  Although the Jewish calendar is lunisolar, the data established for commencement of this prayer is one of the few aspects of the Jewish calendrical system which is entirely solar in nature. Nevertheless, the determination of the date of the autumn equinox for liturgical purposes is not in strict conformity with the actual solar event. The Gemara, <i>Eruvin</i> 56a, records a statement of the Amora, Samuel, to the effect that the duration of each of the four seasons of the year is precisely 91 days and 7½ hours in length. This calculation yields a solar year of exactly 365 days and 6 hours. An identical calculation forms the basis of the Julian calendar which contains 365 days with an additional day added in February every fourth year in order to account for the additional six hours of each solar year in excess of the 365 days of the common year. However, in point of fact, the solar year is only 365 days, 5 hours, 48 minutes and 46 seconds in length. Thus the Julian year, as well as the solar year as calculated by Samuel, is longer than the astronomical solar year by 11 minutes and 14 seconds. This error amounts to approximately one full day in every 128 years. The discrepancy between the length of the Julian year and the true solar year led to a modification of the calendar and the adoption of the Gregorian calendar which omits the extra day of the leap year in all centenary years except in those which are multiples of 400. R. Chaim Joseph David Azulai, <i>Birkei Yosef, Shiyurei Berakhah, Oraḥ Hayyim</i> 229:1, remarks that Samuel was well aware of this discrepancy (and indeed for purposes of adding intercalated months in leap years the Jewish calendrical system utilizes a more sophisticated calculation) but nevertheless the Sages adopted a simple and readily understandable system of calculating the equinox so that the general populace would have no difficulty in determining the date on which to commence recitation of <i>ve-ten tal u-matar</i>. Indeed, since calculation of the seasons for purposes of recitation of <i>ve-ten tal u-matar</i> is based upon a 365-day year with provision for an intercalated day every four years, the date for commencement of the recitation of this prayer is readily determined by utilization of the civil calendar. Throughout any given century the dates in the civil calendar for commencement of <i>ve-ten tal u-matar</i> remain constant. During the twentieth century, the autumn equinox, as defined for this purpose by Jewish law, always occurs on October 7 in common years; hence recitation of <i>ve-ten tal u-matar</i> begins sixty days later on the eve of December 5th. Every fourth year, in the autumn preceding a leap year, the equinox occurs one day later on October 8th and accordingly, in leap years, recitation of <i>ve-ten tal u-matar</i> commences on the eve of December 6th. 
  The designated period during which <i>ve-ten tal u-matar</i> is recited corresponds to the rainy season in Babylonia—the geographic area which was the home of the major portion of the Jewish people at the time that the Men of the Great Assembly ordained this prayer as well as of the later talmudic period. The ordinance governing recitation of this supplication provides that Jews throughout the Diaspora conform to the practice established in Babylonia without regard to local climatic conditions.
  However, in establishing this ordinance, special provision was made for inhabitants of the Land of Israel on the assumption that the Land of Israel requires a longer period of precipitation "because its elevation is greatest of all lands." The Sages ordained that the inhabitants of Israel begin the recitation of <i>ve-ten tal u-matar</i> on a somewhat earlier date, viz., the seventh day of Heshvan.6<i class="footnote">Actually, it would have been logical to ordain the commencement of recitation of <i>ve-ten tal u-matar</i> in <i>Ereẓ Yisra’el</i> immediately following <i>Shemini Aẓeret</i> which marks the beginning of the rainy season as evidenced by commencement on <i>Shemini Aẓeret</i> of the recitation of <i>“mashiv ha-ruaḥ u-morid ha-geshem</i>—He makes the wind blow and the rain descend.” However, the Mishnah, <i>Ta‘anit</i> 10a, explains that recitation of <i>tal u-matar</i> was delayed for two weeks, until the seventh day of Ḥeshvan, in order to permit Jews who were obligated to travel to the Temple for the festival to return to their homes, it being assumed that even stragglers would be able to travel as far as the banks of the Euphrates within that period. A favorable response to the supplication for rain would have brought inclement weather and would have made the return journey arduous. Although Ramban disagrees, the vast majority of early authorities maintain that, even subsequent to the destruction of the Temple, recitation of <i>ve-ten tal u-matar</i> does not begin until after this two-week period has elapsed. Rabbenu Nissim explains that, even after the destruction of the Temple, many Jews continued the practice of journeying to Jerusalem to celebrate the festivals.</i> Nowadays, when tourism and travel between Israel and other countries is common, a question which arises with increasing frequency concerns the manner in which travelers should conduct themselves with regard to the recitation of <i>ve-ten tal u-matar</i> between the dates of 7 Heshvan and December 5. Should residents of the Diaspora who find themselves in Israel join in recitation of the supplication together with the inhabitants of <i>Erez Yisra'el</i> or should they follow the practice of their own countries of residence and omit this petition? Conversely, should residents of <i>Erez Yisra'el</i> who travel to other countries during this period continue to recite the prayer for rain or should they follow the practice of the locale in which they find themselves?
  <i>Be'er Heitev, Oraḥ Hayyim</i> 117:4, cites three conflicting views with regard to the second of these questions. <i>Maharikash</i> and <i>Halakhot Ketanot</i> are of the opinion that a resident of <i>Erez Yisra'el</i> should recite the supplication even when traveling in the Diaspora, but only if the traveler himself has need of rain during that period. Need for rain is defined as pertaining under either of two conditions: (1) the traveler will himself return to <i>Erez Yisra'el</i> during the course of the rainy season; or (2) his wife and children have remained in <i>Erez Yisra'el</i>. The latter stipulation is, of course, based upon the consideration that the needs of one's family are tantamount to personal needs.7<i class="footnote">R. Joel Schwartz, <i>Gevurot Geshamim</i> (Jerusalem, 5744), p. 48, note 9, observes that, according to these authorities, the same ruling would apply to students in the Diaspora who are supported by family living in <i>Ereẓ Yisra’el</i> since the sustenance of such individuals is directly dependent upon the rainfall of <i>Ereẓ Yisra’el</i>.</i> This is also the view of <i>Teshuvot Radbaz</i>, V, no. 2,055. R. Yechiel Abraham Silber, <i>Birur Halakhah</i> 117, qualifies this ruling by stating that an emigrant from <i>Erez Yisra'el</i> who has established permanent residence elsewhere should not recite the supplication even though his wife and children remain in <i>Erez Yisra'el</i>. These authorities are silent with regard to the first question, viz., the manner in which a resident of the Diaspora should conduct himself in <i>Erez Yisra'el</i>.8<i class="footnote">This view is also endorsed by R. Menachem Zechariah Silber, <i>Mo’znei Ẓedek, Oraḥ Ḥayyim</i>, no. 6, sec. 6.</i> Other authorities, including R. Joshua Molko and <i>Teshuvot Dvar Shmu'el</i>, no. 323, disagree and rule that an Israeli traveler should follow the practice of the locale in which he finds himself. These authorities similarly maintain that a tourist in Israel should follow the local practice. <i>Pri Hadash</i> rules that a resident of <i>Erez Yisra'el</i> should recite <i>ve-ten tal u-matar</i> even in the Diaspora but only if he intends to return to <i>Erez Yisra'el</i> "within the year"; if, however, the individual intends to return only "after a year or two years" he should not recite this supplication even though he may have a wife and children who remain in <i>Erez Yisra'el. Birur Halakhah</i> expresses doubt with regard to how the period of "a year" stipulated by <i>Pri Hadash</i> is to be calculated. He queries whether the traveler follows the practice of <i>Erez Yisra'el</i> only if he intends to return to his home prior to <i>Rosh ha-Shanah</i>, prior to the following 7 Heshvan, or prior to the subsequent December 5th. 
  The nature of the controversy between those espousing each of the first two positions is not difficult to explain. R. Joshua Molko and <i>Teshuvot Dvar Shmu'el</i> maintain that recitation of <i>veten tal u-matar</i> is governed by the same general rule which governs many other areas of ritual practice, viz., one is required to follow the practices of the locale in which one finds oneself. <i>Maharikash</i> and <i>Halakhot Ketanot</i>, on the other hand, maintain that prayer (i.e., the Eighteen Benedictions) is ordained to reflect an individual's personal needs and concerns. Hence, according to <i>Maharikash</i> and <i>Halakhot Ketanot</i>, a traveler must disregard local practice and recite the benediction in accordance with his own needs. <i>Pri Hadash</i> may well be understood as being in basic agreement with <i>Maharikash</i> and <i>Halakhot Ketanot</i> in accepting the principle that recitation of <i>ve-ten tal u-matar</i> is contingent upon personal need; the sole disagreement being the definition of need. Unlike <i>Maharikash</i> and <i>Halakhot Ketanot</i>, <i>Pri Hadash</i> maintains that the traveler is in need of rain not only if he plans to return to <i>Erez Yisra'el</i> within the period of the rainy season but also if he returns any time within the year. <i>Birur Halakhah</i> interprets <i>Pri Hadash</i> in this manner but, as noted earlier, expresses doubt with regard to how the term "year" is to be defined, whether as the calendar year beginning with <i>Rosh ha-Shanah</i> or as a cycle of four seasons closing with the beginning of the next rainy season on either 7 Heshvan or December 5. Precipitation during the rainy season serves to satisfy agricultural needs throughout the growing season which culminates approximately at the time of <i>Rosh ha-Shanah</i> and serves to fill other needs for water until rain falls again at the beginning of the next year's rainy season. 
  However, the terminology employed by <i>Pri Hadash</i> lends itself to another possible interpretation. <i>Pri Hadash</i> counterposes the term "a year" and the term "two or three years." <i>Pri Hadash</i> may well have used the term "a year" in the sense of twelve months calculated from the time the traveler has left <i>Erez Yisra'el</i>. Many authorities, including <i>Arukh ha-Shulḥan, Oraḥ Hayyim</i> 496:5, maintain precisely that distinction with regard to observance of the second day of <i>Yom Tov</i>. Those authorities maintain that a visitor acquires the status of a permanent resident if the anticipated duration of the trip is twelve months or longer even though the visitor may have every intention of eventually returning to his home.9<i class="footnote">Cf., however <i>Mo’znei Ẓedek, Oraḥ Ḥayyim</i>, no. 6, sec. 3.</i> Understood in this manner, <i>Pri Hadash</i>'s view constitutes a third position maintaining that the recitation of <i>ve-ten tal u-matar</i> depends entirely upon one's residence rather than upon personal needs. Determination of residence, for <i>Pri Hadash</i>, depends upon whether the anticipated absence is a period of twelve months or longer. 
  This controversy persists among later authorities who continue to differ with regard to resolution of the conflict. <i>Pri Megadim, Mishbezot Zahav</i> 117:1, rules in accordance with the opinion of <i>Pri Hadash</i> while <i>Birkei Yosef, Oraḥ Hayyim</i> 117:5, rules in accordance with the position of R. Joshua Molko and <i>Dvar Shmu'el</i>. 
  <i>Mishnah Berurah</i> 11:5 points out that, although these authorities differ with regard to the theoretical basis of their positions, in terms of the practice to be followed there is no controversy between them. <i>Pri Hadash</i> rules that residents of <i>Erez Yisra'el</i> intending to return to the Holy Land must recite <i>ve-ten tal u-matar</i> on and after 7 Heshvan even during their stay in the Diaspora (either because they remain in need of rain, or because they must follow the practice of their place of domicile). R. Joshua Molko rules that they must follow local practice. However, points out <i>Mishnah Berurah</i>, the general rule is that one adopts local practice only if one intends to remain in the locale for some period of time. A transient intending to return to his place of origin retains his original practices. Accordingly, opines <i>Mishnah Berurah</i>, the statements of R. Joshua Molko and other authorities requiring the traveler to adopt local practices must be understood as referring only to persons "who do not intend to return." <i>Pri Hadash</i> explicitly concedes that one remaining in a new residence for an extended period of time must follow the local practice (either on the grounds that his personal needs have become identical to those of other indigenous residents or because he is deemed to have acquired a new domicile). <i>Mishnah Berurah</i> advances this conclusion somewhat tentatively and states that one would have to peruse the responsa of <i>Dvar Shmu'el</i> and <i>Yad Aharon</i> in order to reach a definitive conclusion. Those works were apparently unavailable to <i>Mishnah Berurah</i>. In point of fact those authorities rule explicitly that local practice should be followed even by a traveler who intends to return to his former abode. <i>Birur Halakhah</i> rules in accordance with this view, contrary to the position of <i>Mishnah Berurah</i>. 
  R. Moses Feinstein, <i>Iggerot Mosheh, Oraḥ Hayyim</i>, II, no. 102, also rules in accordance with the view of R. Joshua Molko and <i>Teshuvot Dvar Shmu'el</i> but for a different reason. <i>Teshuvot ha-Rosh, klal</i> 4, no. 10, and <i>Maharya</i>, cited by <i>Bet Yosef, Oraḥ Hayyim</i> 117, point out that in "our places" rainfall is required early in the fall. Hence, logically, we should commence recitation of the prayer for rain on 7 Heshvan, as is the practice in <i>Erez Yisra'el</i>, rather than on the later date ordained for Babylonia. We do not do so simply because, absent a formal rabbinic ordinance to commence the supplication on the earlier date, such practice never became firmly established and hence it became accepted custom not to recite the supplication at the earlier date. Nevertheless, the cogency of this consideration is reflected in Halakhah. The general rule is that if <i>ve-ten tal u-matar</i> is recited other than in the rainy season the Eighteen Benedictions must be repeated a second time without that supplication. However, Rema, <i>Oraḥ Hayyim</i> 117:2, rules that, in lands where early rainfall is beneficial, if through error one recites <i>ve-ten tal u-matar</i> at an earlier date, the Eighteen Benedictions need not be repeated. On the basis of these considerations <i>Iggerot Mosheh</i> argues that travelers from Israel should commence recitation of <i>ve-ten tal u-matar</i> on the earlier date. Since, in our lands, early rainfall is beneficial, insertion of this supplication does not serve to invalidate the Eighteen Benedictions. Moreover, since in earlier times travel was a relatively rare phenomenon, there is no established custom with regard to travelers which would augur against reciting this prayer. Therefore, concludes <i>Iggerot Mosheh</i>, according to all authorities, a visitor from Israel may commence recitation of <i>ve-ten tal u-matar</i> on 7 Heshvan and, indeed, he should do so in order to fulfill his obligation according to the opinion which requires recitation at the earlier date. The controversy between <i>Pri Hadash</i> and the other authorities, declares <i>Iggerot Mosheh</i>, is limited to lands such as Babylonia which do not require rain until a later date. <i>Iggerot Mosheh</i> rules that in such places the opinion of <i>Pri Hadash</i> and <i>Pri Megadim</i> should be followed. <i>Iggerot Mosheh</i> maintains that the view of <i>Mishnah Berurah</i> is also in accordance with that of <i>Pri Hadash</i>. 
  <i>Iggerot Mosheh</i> does not address the question of the proper practice to be followed by tourists or temporary residents in Israel. Although not discussed explicitly by many of the aforementioned authorities, this question would also appear to be the subject of controversy between them. Since <i>Iggerot Mosheh</i> rules in accordance with the basic position of <i>Pri Hadash</i>, it would then follow, it may be argued, that, in his opinion, tourists and temporary residents should retain the practice of the Diaspora. <i>Pri Megadim</i>, who follows the position of <i>Pri Hadash</i>, does state that the rule requiring travelers to retain the practice of their place of residence applies also to visitors to <i>Erez Yisra'el</i>. However, R. Betzalel Stern, <i>Be-Ẓel he-Hokhmah</i>, I, no. 62, reaches a different conclusion. <i>Pri Hadash</i> limits his discussion to the question of the practice to be followed by a resident of <i>Erez Yisra'el</i> who finds himself in the Diaspora, but does not mention the converse. Rabbi Stern argues that <i>Pri Hadash</i> does not reject temporary personal need as a controlling factor requiring recitation of this supplication. Rather, it may be argued, <i>Pri Hadash</i> posits the need shared with inhabitants of one's place of residence (or the general rule governing ritual practices) as an additional factor necessitating recitation of <i>ve-ten tal u-matar</i>. Thus, in effect, the determining factors are disjunctive: either immediate personal need or needs shared with inhabitants of one's place of residence (or the formal requirement to follow the ritual practices of one's place of residence). An Israeli visiting the Diaspora recites <i>ve-ten tal u-matar</i> because of the latter consideration, while a tourist in Israel is required to recite the supplication, argues Rabbi Stern, because of the first consideration. 
  Rabbi Stern does not fail to recognize that a tourist in Israel planning only a brief visit does not derive any direct benefit from the local autumn rainfall and hence, unless he remains long enough to enjoy that year's produce, has no personal need for the rain. Rabbi Stern counters this contention by citing <i>Berakhot</i> 59a and arguing that abundant rainfall causes the price of produce to fall immediately in anticipation of a bountiful crop during the coming season. Hence, even a person in Israel on a brief visit has "need" for autumn rain since it will immediately result in lower food prices. Moreover, argues Rabbi Stern, in the event that rains are delayed in <i>Erez Yisra'el, Shulḥan Arukh, Oraḥ Hayyim</i> 575:1-4, rules that days of fasting and prayer are proclaimed. Tourists and visitors are also duty-bound to join in prayer and fasting to prevent local misfortune. Therefore, argues Rabbi Stern, even visitors have a need for rain in order to preclude such inconvenience. A similar ruling requiring visitors to <i>Erez Yisra'el</i> to commence recitation of <i>ve-ten tal u-matar</i> on 7 Heshvan is recorded in earlier works including <i>Shulḥan ha-Tahor, Torat Hayyim</i>, as well as by <i>Halakhot Ketanot</i>, I, no. 74. The latter authority, it will be remembered, espouses the opposite view with regard to residents of <i>Erez Yisra'el</i> who visit the Diaspora. <i>Halakhot Ketanot</i> clearly maintains that either immediate personal need or the need of the place of residence to which one will return is sufficient to require the recitation of this supplication. <i>Birur Halakhah</i> also analyzes the position of <i>Pri Hadash</i> and Radbaz in a like manner, but, unlike Rabbi Stern, <i>Birur Halakhah</i> expresses some reservation in the case of a tourist who intends to return home prior to the close of the rainy season and who, therefore, will not benefit directly from produce nurtured by the rain. Unlike <i>Iggerot Mosheh, Birur Halakhah</i> finds that the majority of rabbinic decisors affirm the view of R. Joshua Molko.10<i class="footnote">It is noteworthy that R. Yechiel Michal Tucatzinsky, in his <i>Luaḥ Ereẓ Yisra’el</i>, records that the Sephardic authorities in Israel conduct themselves in accordance with the opinion of <i>Birkei Yosef</i> who accepted the position of R. Joshua Molko and <i>Dvar Shmu’el</i>. R. Shmu’el ha-Levi Wosner is reported to have ruled that foreign students in Israel should abide by this practice and commence recitation of <i>ve-ten tal u-matar</i> as of 7 Ḥeshvan, but that, should they forget to include <i>ve-ten tal u-matar</i> in any particular recitation of the <i>shemoneh esreh</i>, they should rely upon the position of <i>Pri Ḥadash</i> and not repeat the <i>shemoneh esreh</i> prayer. See <i>Gevurot Geshamim</i>, p. 48, note 8.</i> According to those authorities, each person recites the prayer in accordance with the practice of the locale in which he finds himself. According to this view, individual need is not at all a determining factor. Contrary to the opinion expressed by <i>Iggerot Mosheh</i>, Rabbi Yechiel Abraham Silber, as well as his father, R. Benjamin Silber, <i>Bet Barukh, II, klal</i> 24, sec. 64, maintain that this is the position of <i>Mishnah Berurah</i> as well.11<i class="footnote">It is probably the case that neither <i>Iggerot Mosheh</i>’s nor <i>Birur Halakhah</i>’s interpretation of <i>Mishnah Berurah</i>’s position is accurate. <i>Mishnah Berurah first</i> cites the opinion of <i>Pri Ḥadash</i> and <i>Pri Megadim</i> to the effect that travelers should follow the practice of their place of domicile and immediately thereafter proceeds to cite the conflicting view. <i>Mishnah Berurah</i> concludes by formulating the hypothesis that the latter authorities mandate conformity with local practices only if the visitor does not intend to return to <i>Ereẓ Yisra’el</i> and notes that the texts of the <i>Teshuvot Dvar Shmu’el</i> and <i>Yad Aharon</i> should be examined. Quite evidently <i>Mishnah Berurah</i> found no reason to choose between these conflicting positions because of his assumption that, in practice, no disagreement actually exists, although <i>Mishnah Berurah</i> did advance his hypothesis in a tentative manner, pending an examination of texts apparently not available to him. Thus <i>Mishnah Berurah</i> did not attempt to decide between what are, in fact, conflicting views.It has been suggested that any halakhic difficulty in reaching a definitive determination can be avoided by including <i>ve-ten tal u-matar</i> in the fifteenth benediction, <i>“shome‘a tefillah,”</i> rather than in its proper position within the ninth benediction. Halakhah provides that, when inadvertently omitted in its proper place, the phrase <i>ve-ten tal u-matar</i> may be included in the blessing <i>shome‘a tefillah</i> which constitutes a general supplication beseeching God to hearken to our prayers. Prayers for personal needs of any nature may be included in <i>shome‘a tefillah</i>. Hence, even though <i>ve-ten tal u-matar</i> should not be added to the ninth benediction other than in accordance with the rabbinic edict, it may be added to <i>shome‘a tefillah</i> since personal supplications may be incorporated in that benediction. <i>Birur Halakhah</i> dismisses this suggestion as an unnecessary expedient since he rules firmly in accordance with the position of R. Joshua Molko. Nevertheless, in light of the many authorities who rule in accordance with <i>Pri Ḥadash</i>, this advice certainly commends itself to any person who desires to fulfill the obligation in accordance with the views of all authorities. <i>Zer ha-Shulḥan</i> suggests that, under such circumstances, the appropriate interpolation in <i>shome’a tefillah</i> is “<i>ve-tan tal u-matar livrakhah livnei Ereẓ, Yisra’el</i>—and give dew and rain for a blessing to the inhabitants of the Land of Israel.”</i>
  Although he adopts the view that a traveler must conform to local practice, <i>Birkei Yosef</i> 117:6 concedes that a different rule should be followed by a resident of Israel who begins his trip <i>after</i> 7 Heshvan. <i>Birkei Yosef</i> declares that since the traveler has already begun to recite <i>ve-ten tal u-matar</i> he should not interrupt his continued recitation of this supplication in order to conform to local practice.12<i class="footnote">See <i>Be-Ẓel he-Ḥokhmah</i>, I, no. 62, who avers that <i>Birkei Yosef</i>’s comments are directed only to the situation of a resident of Israel who has traveled abroad but intends to return to Israel. However, a resident of Israel who emigrates permanently after 7 Ḥeshvan, argues <i>Be-Ẓel he-Ḥokhmah</i>, should cease recitation of <i>ve-ten tal u-matar</i>.</i> To do so would appear to render his earlier recitation "foolish."13<i class="footnote"><i>Birkei Yosef</i>’s view is, however, contradicted by <i>Teshuvot Be’er Mayim Ḥayyim</i>, no. 5. R. Ovadiah Yosef, in his column in the Israeli weekly, <i>Erev Shabbat</i>, 26 Tishri 5746, asserts that <i>Be’er Mayim Ḥayim</i> was unaware of the conflicting statements of earlier authorities and, hence, Rabbi Yosef rules in accordance with the position of <i>Birkei Yosef</i>.<i>Birkei Yosef</i>’s contention that, once a resident of <i>Ereẓ Yisra’el</i> has commenced recitation of <i>ve-ten tal u-matar</i>, he should not cease such recitation when traveling outside the Land of Israel since to do so would be “foolish,” would appear to apply, <i>mutatis mutandis</i>, to a tourist who returns to his home in the Diaspora after a short visit to Israel. Nevertheless, Rabbi Yosef, in the same contribution to <i>Erev Shabbat</i>, rules that, under such circumstances, the returning traveler should recite <i>ve-ten tal u-matar</i> in <i>shome‘a tefillah</i>. See above, note 11.<i>Birkei Yosef</i>’s concern that to cease recitation of <i>ve-ten tal u-matar</i> would appear “foolish” does not apply to the repetition of the <i>shemoneh esreh</i> by the <i>shliaḥ ẓibbur</i> since his prayer is rendered on behalf of the congregation. Rabbi Yosef cogently notes that, even according to <i>Birkei Yosef</i>, the <i>shliaḥ ẓibbur</i> should not include <i>ve-ten tal u-matar</i> in his repetition of the <i>shemoneh esreh</i>.</i> This view is also espoused by <i>Bet Barukh</i>, II, <i>klal</i> 24, sec. 63. 
  The question with regard to how an Israeli who himself recites <i>ve-ten tal u-matar livrakhah</i> should comport himself when serving as a <i>ḥazzan</i> in leading the congregation in prayer is even more complex. The problem lies in the consideration that, although the <i>ḥazzan</i> must himself recite <i>ve-ten tal u-matar</i>, the congregation should not recite that supplication and hence its recitation on behalf of the congregation by the <i>ḥazzan</i> is inappropriate. It would appear that all authorities are in agreement that such an individual should not assume the role of <i>ḥazzan</i>. 
  The question of how such an individual who inadvertently assumes the role of <i>ḥazzan</i> should recite the Eighteen Benedictions is addressed by <i>Birkei Yosef</i> 117:8. <i>Birkei Yosef</i> rules that while he must indeed recite this supplication in the silent prayer he should not include <i>ve-ten tal u-matar</i> in his repetition of the Eighteen Benedictions on behalf of the congregation. This ruling is disputed by R. Menachem Silber, <i>Mo'znei Ẓedek, Oraḥ Hayyim</i> (New York, 5757), no. 6, secs. 7-8. Although <i>Bet Yosef</i> cites early authorities who maintain that, on a fast day, a person who is himself not fasting may not lead the congregation in prayer, <i>Magen Avraham, Oraḥ Hayyim</i> 566:7, rules that such a person should recite "Answer us on this day of fasting etc." in the blessing of <i>shome'a tefillah</i> but should not employ the usual formula "Answer us on <i>our</i> fast day etc." The clear implication is that were this expedient not available, all would agree that such an individual could not serve as <i>ḥazzan</i>. Nevertheless, inclusion of that supplication by the <i>ḥazzan</i> in his repetition of the Eighteen Benedictions would not invalidate the prayer on behalf of the congregation. Such a conclusion is mandated by the fact that Rema, <i>Oraḥ Hayyim</i> 117:2, rules that, in lands in which early rainfall is beneficial, if, through error, one recites the <i>ve-ten tal u-matar</i> at an earlier date the Eighteen Benedictions need not be repeated. Accordingly, <i>Mo'znei Ẓedek</i> suggests that a person finding himself in such a dilemma should include the supplication <i>ve-ten tal u-matar livrakhah</i> in his repetition of the Eighteen Benedictions but that he pronounce those words softly so that they are inaudible to the other worshipers. It would appear that, according to <i>Moz'nei Ẓedek</i>, this expedient can be utilized by design by a person who wishes to serve as <i>ḥazzan</i> on the occasion of a <i>yahrzeit</i> or similar occasion. 
  Sefirat ha-Omer and the Observance of Shavu'ot for Travelers Crossing the Dateline
  A person traveling across the Pacific Ocean from east to west, and hence following the path of the sun, will lose a full day in crossing the international dateline. Thus, for example, if he crosses the dateline at precisely 6:00 P.M., Sunday, January 10th, he will find himself in a locale in which the time is 6:00 P.M., Monday, January 11th, and will have lost an entire day. Conversely, if a person travels in the opposite direction from the sun, i.e., from west to east, he will gain a full day. Thus, for example, if he crosses the dateline at precisely 6:00 P.M., Monday, January 11th, he will find himself in a locale in which the time is 6:00 P.M., Sunday, January 10th, and hence will have gained an entire day. There is, to be sure, considerable controversy with regard to the location of the dateline for purposes of Halakhah. One who crosses the halakhically recognized dateline, wherever it is established, will find himself having gained or lost a day in terms of calculating the days of the week for purposes of religious observances. Thus, a traveler from east to west will observe his next <i>Shabbat</i> upon expiration of only a five-day period, whereas a traveler from west to east will experience seven full weekdays before observing another <i>Shabbat</i>. This is so because the Sabbath is observed, not on an individual basis upon expiration of six days of labor, but in accordance with objective determination of the day at the longitude at which one finds oneself. Hence all Jews in any given locale observe the Sabbath in a uniform manner. The same is true with regard to observance of festivals which occur on specific days of the month.14<i class="footnote">See <i>Teshuvot Radbaz</i>, I, no. 76; <i>Teshuvot Even Yekarah, Mahadura Kamma, Oraḥ Ḥayyim</i>, no. 11; <i>Teshuvot Ḥavaẓelet ha-Sharon</i>, I, no. 47; <i>Teshuvot Ḥavalim ba-Ne‘imim</i>, IV, no. 3; and <i>Teshuvot Minḥat Yiẓḥak</i>, VI, no. 84.</i>
  A problem does, however, arise with regard to fulfillment of the <i>mizvah</i> of <i>sefirat ha-omer</i>, the counting of the 49 days between <i>Pesaḥ</i> and <i>Shavu'ot</i>. Ostensibly, the counting of the days of the <i>omer</i> does not necessarily entail the counting of consecutive days of the week or of consecutive days of the month, but simply of consecutive twenty-four-hour periods. Thus it might appear that the traveler may ignore the date of the month in the locale in which he finds himself and continue counting consecutive days <i>in seriam</i>. This, however, would lead to an incongruity with regard to the observance of <i>Shavu'ot</i>. The traveler journeying from east to west will find that the festival occurs one day prior to his completion of the counting of seven full weeks; the traveler journeying from west to east will complete the counting of the seven-week period but will experience a delay of one day before <i>Shavu'ot</i> is observed in the area in which he finds himself. Scripture, however, commands that the festival be observed on the day immediately following completion of the counting of the seven-week period: "Until the morrow after the seventh week shall you number fifty days and you shall bring a new meal-offering unto the Lord" (Leviticus 23:16). Thus, the observance of <i>Shavu'ot</i> is inexorably linked to the counting of the <i>omer</i>. Moreover, the counting of the days of this seven-week period is associated with the offering of a sacrifice of the newly harvested produce. The reckoning is essentially the counting off of days until the arrival of the appointed time for the offering. Since the offering is a single communal act it would be somewhat incongruous to define the counting of the <i>omer</i> as a personal, and hence variable, act with the result that a person may complete his own reckoning either a day earlier or a day later than the day associated with the meal-offering.15<i class="footnote">A somewhat related question arises with regard to the observance of Chanukkah. Although the eight-day observance commemorates the miracle of the cruze of oil, the kindling of the Chanukkah lights each night during an eight-day period is not a unitary obligation, i.e., an observance which commences on the 25th of Kislev and continues for eight consecutive days without regard to calendrical considerations. Were that the case, the traveler who crosses the halakhic dateline during the week of Chanukkah would continue to kindle the Chanukkah lights for a complement of eight days commencing with the evening of his own first kindling. Since, however, the obligation is not unitary, but rather eight discreet obligations which devolve upon the individual on each of the days of Chanukkah, a voyager crossing the dateline will be bound to the same observance as the indigenous inhabitants of the locale in which he finds himself. Thus, a traveler journeying from east to west will miss one day and kindle Chanukkah candles for a total of only seven days, while a traveler journeying from west to east will observe an additional day and kindle the lights for an aggregate of nine days. Similarly, it would appear to this writer that a traveler journeying west to east on the last day of Chanukkah, or during the evening following the last day of Chanukkah, must also kindle the Chanukkah lights that evening since, subsequent to crossing the dateline, he finds himself in a locale in which the date is that of the last evening of Chanukkah. Cf., however, Rabbi David Schorr, <i>Ha-Pardes</i>, Nisan 5735.However, with regard to circumcision, which must be performed on the eighth day subsequent to birth, and redemption of the first-born which must be performed on the thirty-first day, it would seem that the days are reckoned in terms of cycles of sunset and sunrise without regard to whether or not the dateline has been crossed. R. Isaac Liebes, <i>Teshuvot Bet Avi</i>, I, no. 111, adopts this view in a responsum concerning redemption of the first-born. It would appear that the same principle would govern determination of halakhic maturity upon attaining the age of thirteen years and one day in the case of a male or twelve years and one day in the case of a female. Cf., however, the discussions of those questions in R. Betzalel Stern, <i>Teshuvot Be-Ẓel he-Ḥokhmah</i>, I, nos. 75-76. For a discussion of the import of crossing the dateline with respect to some aspects of menstrual laws, see R. David Spira, <i>Teshuvot Bnei Ẓion</i>, I, no. 14, sec. 24.</i>
  A highly novel resolution of this problem is presented by Rabbi Menachem Mendel Schneerson, the Lubavitcher <i>Rebbe</i>, in his Yiddish-language <i>Likkutei Siḥot</i>, III, <i>Parshat Emor</i> (New York, 5724). This material was translated into Hebrew and published in a work entitled <i>Hiddushim u-Bi'urim be-Shas</i> (Jerusalem, 5739), no. 36. More recently, in honor of Rabbi Schneerson's eightieth birthday in 5743, Habad Lubavitch of Ontario, Canada published a collection of articles entitled <i>Gevuratah shel Torah</i> which contains an earlier and somewhat different version of this material in the form of a responsum composed by Rabbi Schneerson in 5709 as well as a number of brief letters written in 5718 and 5730, one of which appeared in a Lubavitch publication, <i>Kovez Yagdil Torah</i>, no. 3 (Jerusalem, Tammuz 5737), p. 22. The balance of this material earlier appeared in <i>Likkutei Siḥot</i>, VII (New York, 5732), addenda, pp. 284-287. All of these letters are also published in the addenda to <i>Hiddushim u-Bi'urim be-Shas</i>, pp. 355-357. These letters also appear in Rabbi Schneerson's recently published responsa collection, <i>Yagdil Torah: Teshuvot u-Bi'urim be-Shulḥan Arukh</i> (Kfar Habad, 5741), no. 105. 
  Ostensibly, the problem of counting the <i>omer</i> under these circumstances cannot be resolved by escaping between the horns of the dilemma. Rather, one or the other of the horns must be firmly seized. Either the counting of the <i>omer</i> is not personal and individual, but entails the counting of the particular day as it is established at a given geographic point, or the observance of <i>Shavu'ot</i>, unlike the observance of other festivals, is not uniform in any given place. In his more recent writings, Rabbi Schneerson does not hesitate to affirm that the second thesis is correct. Accordingly, he rules that the traveler should continue counting the days of the <i>omer</i> consecutively without interruption or repetition and observe the <i>Shavu'ot</i> festival on the morrow of his completion of the counting of seven full weeks. Thus, if the traveler has journeyed from east to west he will observe <i>Shavu'ot</i> on the seventh day of Sivan, i.e., one day later than the indigenous Jewish populace, and if he has traveled from west to east he will observe <i>Shavu'ot</i> on the fifth day of Sivan, i.e., one day earlier than his local neighbors. 
  To be sure, <i>Shavu'ot</i>, unlike other festivals, is not inherently associated with a specific day of the month. It uniformly occurs on the fiftieth day following the first day of Passover. Since, in the calendar presently in use, Nisan uniformly contains thirty days and Iyar uniformly contains twenty-nine days, <i>Shavu'ot</i> always occurs on the sixth day of Sivan. However, in earlier periods of Jewish history, when the <i>Bet Din</i> sanctified the months on the basis of witnesses testifying to the sighting of the new moon, it was entirely possible for both Nisan and Iyar to be either twenty-nine or thirty days in length. Thus, in those times, <i>Shavu'ot</i> might occur on either the fifth or seventh day of Sivan as well as on the sixth day of Sivan—precisely the dates on which, arguably, the traveler crossing the dateline must observe the festival. The fact that <i>Shavu'ot</i> might have occurred on the fifth or the seventh day of Sivan in days gone by is, however, not dispositive with regard to the problem confronted by the traveler who crosses the dateline. When the <i>Bet Din</i> declared both Nisan and Iyar to be twenty-nine or thirty days in length, the date of <i>Shavu'ot</i> was determined as occurring on the fifth or the seventh of Sivan for <i>all</i> of Israel. The fundamental question posed by the dateline problem is whether the observance of <i>Shavu'ot</i> is individual and contingent upon each person's own reckoning of <i>sefirah</i>, or whether it is universal and hence uniform for all Jews in a given geographic locale. 
  Although there is cogent reason to question whether the counting of the days of the <i>omer</i> is a matter of individual reckoning or whether it is entirely objective and standard, there is strong reason to assume that, even if the reckoning of the <i>omer</i> is personal in nature, the observance of <i>Shavu'ot</i> is nevertheless uniform for all Jews. To wit: a minor who reaches religious maturity during the <i>omer</i> or a proselyte who becomes a convert to Judaism during that period is certainly obliged to observe <i>Shavu'ot</i> together with all of Israel even though those individuals are under no obligation to count "seven full weeks." Moreover, according to many early authorities, there is no longer a biblical obligation to count <i>sefirah</i> in the present era. Nevertheless, the biblical obligation to observe the festival of <i>Shavu'ot</i> has certainly not lapsed. Rabbi Schneerson counters this objection by asserting that it is not the obligation to count the seven weeks of the <i>omer</i> period which determines the observance of <i>Shavu'ot</i>, but the variable and varying situational basis upon which that counting is predicated which determines the date on which <i>Shavu'ot</i> must be observed. 
  Rabbi Schneerson further opines that, although the traveler who crosses the dateline must observe <i>Shavu'ot</i> on either the fifth or the seventh day of Sivan, he must nevertheless omit the phrase, "the time of the giving of our Torah (<i>zeman matan Toratenu</i>)" from the liturgy of the festival since the giving of the Torah is commemorated on the sixth day of Sivan, the date on which the Torah was actually given and not on the fifth or the seventh of Sivan.16<i class="footnote">See <i>Shulḥan Arukh ha-Rav</i> 494:1; cf., however, <i>Magen Avraham</i> 494: introduction, and <i>Divrei Neḥemyah</i> (addenda to <i>Shulḥan Arukh ha-Rav</i>), <i>Kuntres Aḥaron</i> 581:1.</i>
  In his earlier responsum, written in 5709, Rabbi Schneerson's conclusions are much more tentative and indeed somewhat at variance with his later enunciated views. In his earlier version of this material, Rabbi Schneerson explains the nature of the perplexity concerning the proper mode of counting the <i>omer</i> and advises his interlocutor to count the <i>omer</i> two separate ways, i.e., to count both the day of the <i>omer</i> according to his own reckoning and also to count the day in the manner in which it is counted by the local populace. In a letter written in 5718 he adds that there should be an interval between the two acts of counting lest the counting appear to be contradictory in nature. In that letter, Rabbi Schneerson further rules that a person finding himself in this situation should not pronounce the blessing prior to counting the <i>omer</i>.17<i class="footnote">Cf., R. Menachem Kasher, <i>No‘am</i>, XVIII (5735-36), 357, who is of the opinion that the traveler journeying from east to west may pronounce the blessing and count the <i>omer</i> using the following formula: “Today is the third day of the <i>omer</i> according to the reckoning of the western part of the world and today is the fourth day of the <i>omer</i> according to the reckoning of the eastern part of the world.” Similarly, a traveler journeying from west to east may pronounce the blessing and count the <i>omer</i> using the formula: “Today is the third day of the <i>omer</i> according to the reckoning of the western part of the world and today is the fourth day of the <i>omer</i> according to the reckoning of the eastern part of the world.”</i> Citing <i>Dvar Avraham</i>, I, no. 34, Rabbi Schneerson explains that the blessing cannot be pronounced, even though one of the two acts of counting must be correct, because a "doubtful" or inconclusive act of counting does not constitute "counting" which, by definition, must be precise and accurate.18<i class="footnote">Cf., however, <i>Ba‘al ha-Ma’or, Pesaḥim</i>, end of chapter 10.</i>
  With regard to observance of <i>Shavu'ot</i>, Rabbi Schneerson, in his first responsum (5709), rules that a traveler journeying from America to Australia must regard the day which is observed in Australia as the first day of <i>Shavu'ot</i> as being only "doubtfully" <i>Shavu'ot</i> insofar as he is concerned since according to his individual reckoning it is the last day of the <i>omer</i>. Accordingly, he advises his interlocutor to refrain from activities prohibited on the <i>Yom Tov</i>, but to count the 49th day of the <i>omer</i> and to don phylacteries on that day. The traveler must, of course, observe the second day of the festival as a holy day in every respect. Rabbi Schneerson, however, rules that the traveler need not observe a third day as the "doubtful" second day of <i>Shavu'ot</i>. He reasons that the observance of the second day of the festival in our day is described in the Gemara, <i>Beizah</i> 4b, as a continuation of the practice which was extant when a fixed calendar did not exist. But, argues Rabbi Schneerson, since the eighth of Sivan was never observed by the indigenous populace in the locale in which the traveler finds himself, there exists no custom to that effect which must be continued.19<i class="footnote">A similar rationale is advanced by <i>Bet Yosef, Oraḥ Ḥayyim</i> 624, with regard to the absence of a two-day observance of <i>Yom Kippur</i>.</i> However, it should follow that a traveler journeying in the opposite direction, i.e., from Australia to the United States, must indeed observe <i>Shavu'ot</i> for a three-day period, viz., the fifth, sixth and seventh days of Sivan, and, in accordance with Rabbi Schneerson's ruling, don phylacteries on both the fifth and seventh of Sivan. 
  In his original responsum (5709), Rabbi Schneerson also considers the possibility that there may be a double obligation both with regard to counting the <i>omer</i> and observance of <i>Shavu'ot</i>, i.e., one obligation to count the <i>omer</i> and to observe <i>Shavu'ot</i> on the basis of each individual's personal reckoning and a second obligation predicated upon the established day in any given locale. According to this analysis, the dual counting of the days of the <i>omer</i> and observance of <i>Shavu'ot</i> on multiple days would not be born of doubt but would constitute a normative requirement. 
  In yet another letter, written in the summer of 5718, Rabbi Schneerson advises that the <i>omer</i> be counted in accordance with the individual's own reckoning but that the benediction be omitted. He is, nevertheless, more firm in asserting that <i>Shavu'ot</i> be observed in accordance with the individual's own reckoning but counsels that the concurrence of two other competent halakhic decisors be secured. 
  An entirely opposite view is expressed by R. Ya'akov Yitzchak Weisz in a brief responsum published in his <i>Teshuvot Minḥat Yizḥak</i>, VIII, no. 50. <i>Minḥat Yizḥak</i> rules that, as is the case with regard to other festivals, <i>Shavu'ot</i> must be observed solely in accordance with the reckoning of the geographic locale in which one finds oneself. <i>Minḥat Yizḥak</i> adopts the same position with regard to the counting of the <i>omer</i> and expresses incredulity at the suggestion that a traveler from east to west might still count the forty-ninth day of the <i>omer</i> after the meal-offering of the produce of the new harvest has been offered in Jerusalem. The question of the proper method of counting the <i>omer</i> is also raised, but not firmly resolved, by R. Joseph Cohen in his <i>Harerei Kodesh</i>, a commentary on R. Zevi Pesach Frank's <i>Mikra'ei Kodesh, Pesaḥ</i>, II, no. 63, note 1 (p. 214). 
  Since, according to <i>Minḥat Yizḥak</i>, counting of the <i>omer</i> is akin to celebration of festivals and is determined in accordance with the local reckoning, a person journeying from west to east will perforce count the identical day of the <i>omer</i> on two consecutive evenings. Yet, in a note appended to his original responsum, Rabbi Schneerson declares the counting of the same day of the <i>omer</i> on two consecutive days to be an absurdity. According to <i>Minḥat Yizḥak</i>'s analysis, such a practice is, in the situation described, entirely cogent. 
  <i>Minḥat Yizḥak</i> fails to discuss the question of whether a traveler counting the <i>omer</i> in the same manner as the local populace may recite the benediction. The accepted practice, as codified by <i>Shulḥan Arukh, Oraḥ Hayyim</i> 489:8, is that a person who has forgotten to count one of the days of the <i>omer</i> must continue counting the subsequent days but does not pronounce the benediction since it is no longer possible for him to count "seven full weeks." It would then stand to reason that a traveler journeying from east to west would no longer pronounce the benediction since he perforce has skipped one day of the reckoning. It should also follow that a person contemplating such a journey during the <i>omer</i> should not pronounce the benediction even on the days prior to crossing the dateline since he is fully aware of the fact that he will not count the full complement of forty-nine days. 
  The question of pronouncing the blessing prior to counting the <i>omer</i> on subsequent days is expressly addressed in another, somewhat earlier source. R. David Spira, <i>Teshuvot Bnei Ẓion</i>, I (Jerusalem, 5698), no. 14, sec. 23, in a brief comment, does indeed rule explicitly that the traveler who crosses the halakhic dateline in the course of traveling from east to west can no longer recite the blessing upon counting the <i>omer</i>. Although <i>Bnei Ẓion</i> is not quoted by any of the heretofore cited authorities, it is quite evident that his position is identical to that of <i>Minḥat Yizḥak. Bnei Ẓion</i>'s opinion is, however, cited by <i>She'arim ha-Mezuyanim be-Halakhah</i> 120:2, note 5. 
  Rabbi David Schorr, in an article appearing in the Nisan 5735 issue of <i>Ha-Pardes</i>, adopts a position that is essentially identical to that of <i>Minḥat Yizḥak</i> but adds that a person crossing the dateline from east to west must count the <i>omer</i> a second time on the day of his crossing. He reasons that, since a person is required to count the <i>omer</i> in accordance with the reckoning of the <i>omer</i> in the locale in which he finds himself, that obligation devolves upon him immediately upon crossing the halakhic dateline.20<i class="footnote">A similar view is advanced by R. Samuel Havlin, <i>Moriah</i>, Sivan 5744.</i> If this position is accepted the previously discussed problem is obviated since, in fact, no day has been omitted in the counting of the <i>omer</i>. Against this view it may be argued that an individual is subject to but one obligation with regard to the counting of any single cycle of night and day during the <i>omer</i> period. The specific obligation, to be sure, is objectively determined by geographic location but, once the obligation has been correctly discharged, no further obligation can devolve upon the individual during the course of that day. 
  The situation of a traveler journeying from west to east is significantly different. Such a traveler does not miss any day in the reckoning of the days of the <i>omer</i>. On the contrary, if he is required to conform to local practice in counting the <i>omer</i> on the evening subsequent to crossing the dateline, he must count exactly as he did the preceeding evening before crossing the dateline. The weeks which he has counted are thus certainly "full" ones. Accordingly, there appears to be no reason for him not to resume recitation of the benediction as he resumes consecutive counting of the days of the <i>omer</i> subsequent to having counted the same day a second time. Indeed, there might be strong reason for the traveler to pronounce the benediction even on the two consecutive days that he, in his counting, pronounces to be the same day of the <i>omer</i> since on both days he is fulfilling the normative requirement of counting the <i>omer</i> in accordance with the reckoning of the area in which he is located. 
  <i>Bnei Ẓion</i>'s ruling with regard to a person traveling in the opposite direction, i.e., from west to east, is more complex. <i>Bnei Ẓion</i> declares that a traveler finding himself in such a situation cannot pronounce a blessing upon counting the <i>omer</i> on the evening following the crossing of the dateline from west to east since he has already proclaimed that particular day of the <i>omer</i> in an identical manner on the previous evening. This view is also cited by <i>She'arim ha-Mezuyanim be-Halakhah</i>. <i>Bnei Ẓion</i> further expresses some reservation with regard to whether the traveler may resume recitation of the blessing on subsequent evenings but appears to incline to the position that the two days are to be deemed a single "long day" (<i>yoma arikhta</i>).21<i class="footnote">See also Rabbi David Schorr, <i>Ha-Pardes</i>, Nisan 5735, who similarly states that the traveler journeying from west to east in the midst of the <i>omer</i> is exempt from counting the <i>omer</i> on the evening following his crossing of the halakhic dateline since he has already pronounced the number assigned to that day in his counting of the <i>omer</i> the previous evening. See also R. Samuel Havlin, <i>Moriah</i>, Sivan 5744. This position, however, is not entirely consistent with the basic thesis upon which it is predicated, viz., that the obligation regarding <i>sefirat ha-omer</i> is objective and determined by geographic locale. Since each day must be counted by assigning to it the proper number at the place of counting, the fact that a given day was previously counted at a different locale should not serve to exempt the traveler from counting the day in the manner which is correct in the locale in which he subsequently finds himself. Indeed, consistent with Rabbi Schorr’s own position as earlier cited, it may be argued that the traveler journeying from west to east must repeat the act of counting upon reaching the eastern side of the dateline by pronouncing the day to be one day earlier in the <i>omer</i> than he had pronounced it to be while yet on the western side of the dateline. It should be noted that <i>She‘arim ha-Meẓuyanim be-Halakhah</i>, ostensibly citing <i>Bnei Ẓion</i>, explains that no new counting of the second day of the reckoning of the <i>omer</i> need be performed on the evening subsequent to crossing the dateline because the two days are deemed to be a single “long day.” In point of fact, <i>Bnei Ẓion</i> does not offer this concept as a rationale exempting the traveler from counting, but as a reason for permitting him to resume pronouncement of the blessing on subsequent evenings; nor, indeed, does this rationale adequately dispel the basic problem.</i>
  Chanukkah Lights for Travelers
  The majority of commandments, both biblical and rabbinic, are in the nature of personal obligations which devolve upon an individual wherever he may find himself. Of course, the observance of some of the commandments is restricted to the Land of Israel, particularly in the case of agricultural <i>mizvot</i> pertaining to the produce of the land; others are contingent upon the existence of the Temple. A few, e.g., <i>mezuzah</i> and the requirement of a <i>ma'akeh</i>, or protective barrier, around a roof obviously cannot be fulfilled unless one occupies a dwelling or other structure. The homeless are perforce exempt from such <i>mizvot</i>. 
  The obligation concerning the kindling of Chanukkah lights would, at first glance, appear to belong to the category of personal obligations. Other than the obvious inconvenience in fulfilling this <i>mizvah</i> which would undoubtedly be experienced by those who have no domicile, there appears to be no intrinsic reason why maintenance of a home should constitute a condition of this obligation. Yet at least two early authorities apparently maintain that a person who has no domicile is exempt from this <i>mizvah</i>. The Gemara, <i>Shabbat</i> 23a, speaks of an individual who gazes upon already burning lights but does not participate in the kindling itself. The Gemara declares that such an "observer" is nevertheless obligated to pronounce the benediction "who has performed miracles for our fathers in those days at this season." Rashi, troubled by the fact that, ostensibly, all persons are required to kindle Chanukkah lights, states that the Gemara's reference is to one who has as yet not kindled the lights in his own home or to a person "who is situated on a ship." Rashi clearly implies that a traveler, i.e., a person finding himself on a riverboat, need not kindle the Chanukkah lights21a<i class="footnote">Cf. R. Benjamin Silber, <i>Az Nidberu</i> VI, no. 75, and R. Eliezer Waldenberg, <i>Ẓiẓ Eliezer</i> XV, no. 29, who maintain that Rashi does not regard the passenger on a ship as exempt from the obligation, but simply as incapable of fulfilling it.</i> but must pronounce "the observer's benediction" (<i>birkat ha-ro'eh</i>) if he sees the lights kindled by others in their homes. Similarly, <i>Tosafot, Sukkah</i> 46a, states that the blessing "who has performed miracles" was ordained primarily because of people "who do not possess homes" and hence "it is not within their power" to perform the kindling ceremony. 
  Actually, the phraseology employed by <i>Tosafot</i> is somewhat ambiguous. R. Zevi Pesach Frank, <i>Mikra'ei Kodesh, Hanukkah-Purim</i>, no. 18, understands the phrase, "it is not within their power to fulfill the <i>mizvah</i>" (<i>ein be-yadam le-kayyem ha-mizvah</i>) as meaning that such persons are entirely exempt from the commandment. The phrase, however, readily admits of another interpretation, viz., that these individuals may be incapable of kindling lights for reasons which are entirely pragmatic in nature, e.g., without benefit of shelter, it may not be possible for them to kindle a light which will remain burning for the requisite period of time. According to this interpretation, such persons are not at all halakhically exempt from the <i>mizvah</i> but are prevented from discharging their obligation by virtue of <i>force majeure</i>. Hence, were it possible to overcome such impediments, the obligation would be fully incumbent upon them. The latter interpretation of <i>Tosafot</i> is espoused by R. Benjamin Silber, <i>Az Nidberu</i>, VII, no. 67. Rabbi Silber also argues (albeit unconvincingly) that Rashi's comments must be understood in a like manner. According to his understanding, Rashi does not intend to state that a passenger on a boat is exempt from the <i>mizvah</i>, but only that a passenger who has embarked on a voyage is likely to lack the necessary provisions for kindling Chanukkah lights. In disagreement with Rabbi Frank, Rabbi Silber maintains that even a homeless person or a person "finding himself in a desert" is obligated to kindle Chanukkah lights. 
  Rabbi Gedalia Rabinowitz has drawn this writer's attention to the comments of Rabbenu Nissim, <i>Shabbat</i> 23a, which support the view that a domicile is not a necessary condition of the obligation. Explaining why a guest in another person's home is obligated to kindle the Chanukkah lights, Rabbenu Nissim writes, "… do not say that the law pertaining to the Chanukkah lamp is identical to the law of <i>mezuzah</i>, i.e., that whosoever has no house is exempt from the <i>mezuzah</i>." Quite evidently, Rabbenu Nissim's view is that the <i>mizvah</i> of kindling Chanukkah lights constitutes a personal obligation which is not contingent upon occupation of a domicile. 
  Fortunately, this question does not frequently arise in situations involving homeless persons. However, the question does arise with great frequency in cases of individuals who find themselves traveling throughout the night by car, train or airplane. In a note appended to <i>Mikra'ei Kodesh</i>, Rabbi Frank's grandson, R. Joseph Cohen, reports that a similar question was posed by soldiers in the Israeli armed forces who found themselves on military maneuvers during Chanukkah. 
  Among latter-day authorities, the first to address this question is R. Shalom Mordecai Schwadron, <i>Teshuvot Maharsham</i>, IV, no. 146. <i>Maharsham</i> somewhat tentatively opines that passengers on a train must kindle Chanukkah lights.21b<i class="footnote">This is also the opinion of <i>Arukh ha-Shulḥan, Oraḥ Ḥayyim</i> 677:5. See also <i>Ẓiẓ. Eliezer</i> XV, no. 29.</i> <i>Maharsham</i> affirms that in the absence of occupancy of a dwelling no obligation exists, but argues that a train car used for eating and sleeping constitutes a "dwelling." He distinguishes Rashi's comment with regard to a passenger on a ship by stating that Rashi refers only to an open boat lacking walls and a roof. 
  Rabbi Frank's discussion of this problem focuses upon the definition of a dwelling. Drawing upon the rulings of <i>Arukh ha-Shulḥan, Yoreh De'ah</i> 286:26 and <i>Mishnah Berurah</i> 366:13 regarding <i>mezuzah</i> and <i>eruvei ḥazerot</i>, Rabbi Frank distinguishes between what these authorities term "temporary" dwellings versus "permanent" dwellings. <i>Arukh ha-Shulḥan</i> and <i>Mishnah Berurah</i> maintain that ships divided into staterooms or compartments are "dwellings" requiring <i>mezuzot</i> and <i>eruvei ḥazerot</i>. In actuality, it appears that it is not permanence per se which is the controlling factor but the fact that staterooms provide privacy and clearly demarcated areas for the exclusive use of each passenger. Privacy and the right to exclude others are deemed to be the distinguishing characteristics of a "dwelling." Rabbi Frank maintains that, <i>mutatis mutandis</i>, the same criteria should apply with regard to the definition of a "dwelling" for purposes of Chanukkah lights. Thus, a passenger occupying a stateroom on a ship or compartment on a train would be required to kindle Chanukkah lights, while a passenger on a ferryboat, an airplane passenger or a person occupying a coach seat on a train or bus would be exempt. This position seems to be at variance with that of <i>Maharsham</i>. <i>Maharsham</i> apparently maintains that the essential attribute of a "dwelling" is protection against the elements and, since he fails to distinguish between private compartments and public coaches, <i>Maharsham</i> apparently maintains that all persons traveling by such conveyances are obliged to kindle Chanukkah lights.22<i class="footnote">R. Joseph Eliashiv is quoted in <i>Halakhot ve-Hanhagot mi-Maran Ba‘al ha-Kehillot Ya‘akov</i> (n.d.) p. 37, as ruling that airplane passengers should not pronounce a blessing upon kindling Chanukkah lights because a “suspended tent” (<i>ohel zaruk</i>) is not deemed to be a tent. R. Ya‘akov Kanievsky is reported to have disagreed with that line of reasoning, and to have stated simply that a blessing should not be recited because an airplane is no different from a ship. This position is, of course, based on Rashi’s comments indicating that Chanukkah lights need not be kindled on a ship.</i>
  R. Abraham Yafe-Schlesinger, <i>Teshuvot Be'er Sarim</i>, II, nos. 5-6, similarly rules that airplane passengers are obligated to kindle Chanukkah lights. Rabbi Yafe-Schlesinger suggests that they request permission to use the airplane galley for this purpose and that, in order to minimize inconvenience and commotion, they light only a single candle.23<i class="footnote">A person who on previous occasions has kindled multiple lights may, however, require nullification of his “vow” to continue to do so.</i>
  This opinion is endorsed by Rabbi Yafe-Schlesinger's father-in-law, Rabbi Betzalel Stern, <i>Teshuvot Be-Ẓel he-Hokhmah</i>, IV, no. 127. Rabbi Stern also suggests that a passenger may provide himself with a glass in which he may fully enclose the candle and place the glass upon the folding tray provided for the convenience of airplane passengers. In the event that flight attendants insist that the flame be extinguished, Rabbi Stern advises that the passenger inform the attendant that he is not permitted to extinguish the candle but, if absolutely necessary, the attendant should himself or herself quench the flame. Such a situation, argues Rabbi Stern, is comparable to kindling the Chanukkah candle and the candle subsequently becoming extinguished of its own accord. In such circumstances the <i>mizvah</i> has been fulfilled and the candle need not be rekindled (<i>kavtah eino zakuk lah</i>). Of course, as Rabbi Stern himself freely concedes, use of the airplane galley, if permitted, is certainly preferable. 
  
  Chapter III Kashrut
  
  <i>The Holy One, blessed be He, permitted the nations of the world creeping things but regarding Israel, who are destined for eternal life, He said, "And ye shall be holy … You shall not make yourselves detestable … This you shall eat and this you shall not eat.</i>
  TANHUMA, SHEMINI 6
  Many hypotheses have been advanced in explaining the dietary code on the basis of physical, psychological and social considerations. A number of midrashic comments clearly reflect the view that food consumed by man produces either a beneficial or a deleterious effect upon the soul. Thus, man's source of physical sustenance has a profound effect upon his spiritual well-being. <i>Tanḥuma, Shemini</i> 6, offers a poignant parable illustrating this concept: A physician visited two patients suffering from the identical malady. One was told by the doctor to eat whatever his heart desired; for the other he prescribed a strict diet and admonished him in great detail to eat only certain foods and to eschew others. When queried with regard to the discrepancy in his treatment of the two patients, the physician replied that the first could not be healed but that for the second there was hope. Therefore, there was no reason to restrict the first patient, whereas the eating habits of the second were a matter of great concern if he was to be restored to a state of health. As an explanation of the rationale underlying the dietary code, this midrashic comment underscores the principle that corporeal matters are causally related to achievement of spiritual excellence. The boundary between the material and the metaphysical is not at all hard and fast; the two are not entirely dichotomous. For a Jew the body is not simply a vessel serving as a container of a sacred soul, but is itself an instrument of spirituality. The laws of <i>kashrut</i> are addressed to a people who aspire to holiness and are designed to facilitate attainment of that goal. 
  The sanctity of the body is reflected in many other areas of Halakhah as well, although it may require a high degree of intellectual acumen to perceive a relationship between those areas of Jewish law and dietary restrictions. Such a connection is underscored by R. Abraham I. Kook, <i>Da'at Kohen</i>, no. 199, in an insightful responsum devoted to the anatomical study of cadavers. A correspondent expressed concern that non-Jews might not understand the reluctance of Jews to permit dissection of a corpse for scientific purposes and, accordingly, an anti-Semitic backlash might occur in some circles. Rav Kook's response is disarming in its simplicity: The Jew regards his body as sacred, as evidenced by the scrupulousness with which it is nourished and nurtured. Surely, he comments, all must recognize that the care and discrimination practiced in observance of the laws of <i>kashrut</i> endow the body with a unique sanctity; assuredly, then, even in death, that sacred body is deserving of deferential treatment. 
  It was not naivete, but saintliness, that prompted Rav Kook to ascribe such keen perception as universal in nature, but his insight surely should aid Jews in developing an awareness of the role of the dietary code in achieving a sanctity that is the unique patrimony of the people of Israel. 
  Turbot
  The presence of <i>snapir ve-kaskeset</i>, usually translated as "fins and scales," is the distinguishing criterion which serves to identify those species of fish which are permitted as kosher. The term "scales," however, is an inexact translation of the biblical term <i>kaskeset</i> which occurs in Leviticus 11:9. There exist a variety of anatomical structures known as "scales" which do not satisfy the halakhic definition of <i>kaskeset</i>. As evidenced by the terminology employed by the Gemara, <i>Avodah Zarah</i> 39a, and by Targum Onkelos, Leviticus 11:9, the term <i>kaskeset</i> denotes only scales which can be "peeled" or removed without injury to the underlying skin.1<i class="footnote">See also Ramban, <i>Commentary on the Bible</i>, Leviticus 10:10; <i>Tiferet Yisra’el, Ḥullin</i> 3:96; and R. Menachem Mendel Schneerson, <i>Teshuvot Ẓemaḥ Ẓedek, Yoreh De‘ah</i>, no. 61. Cf., <i>Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Yoreh De‘ah</i>, nos. 28-30, and <i>Teshuvot Ketav Sofer, Yoreh De‘ah</i>, no. 45.</i> In terms of biological classification, both ctenoid scales and cosmoid scales possess this characteristic. Scales of other types, are, in fact, projections or tubercles of the skin itself rather than a separate covering. Since scales of non-kosher species are integral to the skin itself, removal of such scales causes damage to the skin. Such damage can be observed visually at the time of removal. Thus, whether or not the scales of a particular species meet the criteria of <i>kaskeset</i> may be established at the time of their removal. Removal of the scales without damage to the skin establishes that the scales removed constitute a separate covering, or <i>kaskeset</i>, and not merely projections of the skin itself.2<i class="footnote">See Dr. Israel Meir Levinger, <i>Mazon Kasher min ha-Ḥai</i>, 2nd edition (Jerusalem, 5740), pp. 92 ff.</i>
  The nature of the scales covering a particular fish is not always readily apparent on visual examination prior to removal. Moreover, there exist closely related species of fish some of which are kosher and some of which are not. The distinguishing criterion is, of course, the nature of the scale which is present. The close resemblance of a non-kosher fish to a kosher variety has, at times, generated confusion and has led to error. 
  Turbot is a case in point. The fish, known in Latin as <i>Rhombus maximus</i> and in German as <i>Steinbutt</i>, possesses bony tubercles but lacks the type of scale which qualifies as <i>kaskeset</i>. Rabbi David Feldman, <i>Shimushah shel Torah</i> (London, 5711), p. 19, reports that turbot is easily mistaken for kosher species such as plaice and halibut. Rabbi Feldman presents a simple method for determining whether a given fish of this type is of a kosher variety or is the non-kosher turbot. Both the kosher and non-kosher species are black on one side and white on the other. However, the various species differ in that the left side of the turbot is black, while in kosher species it is the right side which is black. Accordingly, to determine whether the fish in question is kosher or non-kosher, the fish should be held spine upward with the head pointing away from the body of the holder. If the black side of the fish is observed to be on the left, it may be concluded that the fish is a turbot. If, however, the left side of the fish is white, the fish may be presumed to be of a kosher species. Rabbi Feldman hastens to add that since this criterion is not formulated in talmudic sources it should not be regarded as absolute.3<i class="footnote">According to some authorities, there may be a positive reason to examine further for the presence of scales. <i>Sefer ha-Ḥinnukh</i>, no. 145, regards Leviticus 11:9 as a positive commandment establishing a requirement to examine fish for the presence of fins and scales prior to eating. This requirement cannot be satisfied by examining for the presence of other criteria; cf., <i>Ḥiddushei Ḥatam Sofer, Ḥullin</i> 66a, s.v. <i>u-ve-dagim</i>. <i>Sefer ha-Ḥinnukh</i> seems to follow Rambam’s formulation of this <i>miẓvah</i> as presented in his <i>Sefer ha-Miẓvot, miẓvot aseh</i>, no. 152. However, a somewhat different exposition is presented by Rambam in his <i>Mishneh Torah, Hilkhot Ma’akhalot Assurot</i> 1:1. Cf., also Rashi, Leviticus 11:47, and the comments of R. Elijah Mizraḥi, <i>ad locum</i>. For a fuller discussion of these sources, see the opening section of this writer’s article in the Kislev 5749 issue of <i>Or ha-Mizraḥ</i>.</i> Accordingly, a careful examination of the scales should always be made before the fish may be accepted as a member of a kosher species. However, if it is determined that the left side is black, it may be concluded that the fish is a non-kosher turbot and hence any further investigation is without purpose. 
  Nevertheless, despite the definite absence of <i>kaskeset</i>, turbot has not always been recognized as a non-kosher species. As will be shown, turbot which is common in England was also accepted there as kosher, at least in some circles, until a formal pronouncement labeling it a forbidden species was issued by the London <i>Bet Din</i>. Dr. Israel Meir Levinger, writing in the Tevet 5742 issue of <i>Ha-Ma'ayan</i>, reports that, although turbot was banned in Amsterdam, it was accepted as kosher in The Hague until World War II.4<i class="footnote">Cf., R. David Zevi Hoffmann, <i>Melamed le-Ho‘il</i>, II, no. 19, who reports that R. Asher Stern of Hamburg ruled that turbot was not kosher, but adds the comment that he “had heard” that it was eaten in Holland. [See, however, the statement of a former Chief Rabbi of Altona, R. Meir Lerner, <i>Teshuvot Hadar ha-Karmel</i> (London, 5735), II, <i>Yoreh De‘ah</i>, no. 28, who reports that although turbot was not eaten in Altona, it was eaten in neighboring Hamburg.]</i>
  An intriguing historical account of the confusion concerning the status of turbot in England is presented by Chief Rabbi I. Maarsen in the January 11, 1929 issue of a Dutch weekly, <i>De Vrijdagavond</i>. Much of that material was incorporated in an article authored by R. Israel M. Levinger and Michael Negin that appeared in the Iyar 5744 issue of <i>Seridim</i>, a publication of the Conference of European Rabbis. 
  In 1738 two emissaries from Venice, Jacob Belilius and Jacob Saraval, arrived in London to collect funds for needy Jews in Palestine. Those individuals publicly ate turbot on a number of occasions, declaring it to be identical with the Italian <i>rhombo</i> commonly enjoyed by Jews in Venice.5<i class="footnote">The account of the incident presented by Cecil Roth, <i>The Great Synagogue, London, 1690-1940</i> (London, 1950), p. 81, is incorrect both with regard to date and detail.</i> The <i>rhombo</i> is described by the Venetian <i>Bet Din</i> as a fish that sheds its scales when removed from water.6<i class="footnote">The text of the statement by the <i>Bet Din</i> of Venice is published in C. Duschinsky, <i>The Rabbinate of the Great Synagogue, London From 1756-1842</i> (London, 1921), p. 285, and in <i>Seridim</i>, Iyar 5744, p. 16.</i>
  Since, in London, prior to the advent of these messengers, turbot had been regarded as non-kosher, their actions generated a furor. The matter was apparently brought to the attention of the then Chief Rabbi of the Ashkenazic community of Amsterdam, R. Aryeh Leib Lowenstam, a son-in-law of Hakham Zevi. R. Aryeh Lowenstam composed a lengthy responsum, dated 8 Av 5501 (1741), addressing this question.7<i class="footnote">The manuscript is listed in Neubauer’s <i>Catalogue of the Hebrew Manuscripts in Jews’ College Library London</i> (Oxford, 1886) and is now in the possession of the London <i>Bet Din</i>. This writer is indebted to the London <i>Bet Din</i> for providing him with a copy of the manuscript as well as for making available to him their extensive material on this subject.</i> Despite attestations of the Venetian rabbinate, R. Aryeh Leib was unable to confirm that the Italian fish and turbot were identical. Consequently, he refused to sanction turbot as a kosher fish.8<i class="footnote">Curiously, the editions of a pocket calendar published in Amsterdam in 1706-1707 and 1725-1727 recommend consumption of turbot during the months of Tevet and Shevat. The calendar appears with the approbation of the Chief Rabbis of the time. Presumably, the rabbinic authorities reviewed only the calendrical material and ignored the sections that appeared to be mundane. See Maarsen, <i>loc. cit.</i>, and Levinger and Negin, <i>loc. cit</i>.</i> An appendix to this document written by the incumbent Chief Rabbi of London's Great Synagogue, R. Aaron Hart, a son-in-law of R. Samuel of Fürth (author of the <i>Bet Shmu'el</i>), similarly declares the fish to be non-kosher. Rabbi Hart relates that upon learning of the report of the Venetian travelers he discussed the matter with the head of the Sephardic community, Hakham Issac Nieto. The latter, together with the members of his <i>Bet Din</i>, carefully examined a number of turbot but could find no scales. An offer of half a guinea was made to any fishmonger's servant who would furnish a turbot with scales intact, but there were no claimants. Rabbi Hart himself endeavored to examine the turbot with a microscope but could find no sign of scales. Rabbi Hart further points out that the Chief Rabbi of London's Sephardic community from 1700 to 1728, the renowned Hakham David Nieto, was a native of Venice and had later lived in Leghorn. R. Hart notes that had Hakham Nieto recognized turbot as the Italian <i>rhombo</i> he certainly would have certified it as kosher during his tenure in London.9<i class="footnote">See <i>De Vrijdagavond</i>, January 11, 1929, p. 227.</i>
  The discussion was continued in the next generation by the sons of R. Aryeh Leib. R. Aryeh Leib's successor as Chief Rabbi of Amsterdam was his son R. Saul Lowenstam. Another son, variously known as Hirschel Lewin or Hart Lyon, became Chief Rabbi of the Great Synagogue in London and served in that office from 1758 to 1764. Hirschel Lewin wrote to his brother in Amsterdam arguing the cause of the <i>kashrut</i> of turbot but carefully noted that he would not rule independently in contradiction to the decision of their father. R. Saul Lowenstam responded by rebutting his brother's arguments and by endorsing the earlier rulings prohibiting the eating of turbot.10<i class="footnote"><i>Loc. cit.</i>, pp. 227-28.</i>
  The reticence of Hirschel Lewin was not shared by his son. Hirschel Lewin left London for Mannheim in 1764 and died in Berlin in 1800. A child, known as Solomon Hirschell, born in London in 1761, was to occupy his father's former position as Chief Rabbi of the Great Synagogue for a span of forty years from 1802 to 1842. In 1822, the <i>Bet Din</i> received a communication from Newcastle-upon-Tyne asking if turbot was a permitted fish. Solomon Hirschell responded in the affirmative and stated that permissive rulings had previously been issued by two authorities, his father and his illustrious uncle, R. Saul of Amsterdam.11<i class="footnote">See Hyman A. Simons, <i>Forty Years a Chief Rabbi: The Life and Times of Solomon Hirschell</i> (London, 1980), p. 68.</i> The attribution of this view to R. Saul of Amsterdam is simply incorrect. Hirschel Lewin did, at least at one time, entertain such views but did not act upon them. It is certainly possible that Solomon Hirschell never saw the manuscript in question but relied upon confused childhood memories of conversations with his father. In any event, Hirschel Lewin's advice was widely relied upon in England. It is certain that at least one list of kosher fish compiled by the London <i>Bet Din</i> in 1943 includes turbot as a kosher species.12<i class="footnote">See <i>The Jewish Chronicle</i>, May 14, 1943, p. 18 and November 19, 1954, p. 17. R. Israel M. Levinger and Michael Negin report that the <i>Bet Din</i> received scientific information in 1949 indicating that turbot do not have scales and thereafter omitted turbot from its list of kosher fish.</i>
  So the matter rested until 1954. At a festive dinner of a Jewish organization, catered at a prominent hotel under the supervision of the Kashrus Commission, the fish course consisted of turbot. One of the distinguished guests accused the caterer of serving non-kosher fish. During the ensuing furor the Chief Rabbi, Sir Israel Brodie, left his place at the head table to question the <i>kashrut</i> supervisor.13<i class="footnote"><i>The Jewish Chronicle</i>, October 29, 1954, pp. 5-6 and November 5, 1954, p. 6. See also Simons, <i>loc. cit</i>.</i> Although the Kashrus Commission later declared that the "turbot" served at the dinner was of a kosher variety,14<i class="footnote"><i>The Jewish Chronicle</i>, October 29, 1954, pp. 5-6 and November 5, 1954, p. 6.</i> the affair culminated in a ruling issued by the London <i>Bet Din</i> on November 2, 1954 declaring that turbot "is not to be included in the list of kosher fish."15<i class="footnote"><i>The Jewish Chronicle</i>, November 12, 1954, p. 5. See also Simons, <i>loc. cit</i>.</i>
  It is possible that the confusion regarding turbot was compounded by the fact that in some instances the term "turbot" has been used to denote a kosher variety of fish rather than the non-kosher <i>Rhombus maximus</i>. Thus, for example, the 1980 edition of <i>A Guide To Kashrut</i>, published by the student organization of Yeshiva University, while carefully noting that European and South American turbot are non-kosher, reports that a species sold commercially as "Greenland turbot" is a kosher fish. 
  Similar confusion existed in earlier periods as well. <i>Semak</i>, no. 111, reports in the name of R. Judah he-Hasid that a certain fish known as <i>barbuta</i> is non-kosher, but adds that other prominent rabbinic authorities did partake of that fish. Similarly, <i>Hagahot Asheri, Avodah Zarah</i> 2:41, quotes R. Judah he-Hasid as stating that one who partakes of <i>barbuta</i> will not be privileged to eat of the leviathan, but reports that Rashba declared in the name of Rabbenu Simchah that <i>barbuta</i> was a permitted species. This is apparently the position of Rosh, <i>ad locum</i>, as well. <i>Hagahot Asheri</i> further recounts that Rabbenu Ephraim originally permitted <i>barbuta</i> to be eaten but rescinded his permissive ruling upon experiencing a vision in a dream chastising him for his earlier leniency. 
  It is difficult to fathom the nature of the dispute concerning <i>barbuta</i>, particularly since in none of these sources is a controversial halakhic point enunciated. Apparently, these halakhic decisors themselves failed to grasp the reasoning of their opponents. This is evident in the words of Rosh who states, "It is difficult for me [to understand] the nature of the doubt on the part of all the great authorities." Dr. Levinger suggests that the confusion is, to a certain extent, linguistic in origin and centers upon identification of two different species, but that in point of fact, no substantive dispute exists. The <i>barbuta</i> forbidden by R. Judah he-Hasid, he asserts, is none other than <i>Rhombus maximus</i> or turbot. The authorities who issued permissive rulings, argues Dr. Levinger, intended their rulings to apply to a closely related species, <i>Rhombus Laevis</i>, known in English as kite or brill. <i>Rhombus Laevis</i> is, however, known in French as <i>barbue</i>. Hence the references to a permissive ruling with regard to <i>barbuta</i> are, in fact, references to the <i>barbue</i> and thus there arose the confusion of this fish with the related non-kosher species <i>Rhombus maximus</i> or turbot.16<i class="footnote">It is, however, entirely possible that the controversy with regard to the <i>kashrut</i> of <i>barbuta</i> reflected another substantive dispute among early authorities. <i>Tosafot, Avodah Zarah</i> 40a, is of the opinion that the presence of a backbone may be relied upon in establishing the permissibility of a fish. Rosh, <i>Avodah Zarah</i> 2:41, records an opposing view. The <i>barbuta</i> may well have been a fish lacking discernible scales but possessing a backbone. The controversy regarding its permissibility would then have centered upon whether or not the presence of a backbone constitutes a reliable indicator that the fish does indeed possess scales but sheds them upon emerging from the water.However, from other comments of <i>Tosafot, Avodah Zarah</i> 40a, it would appear that the controversy reflects a disagreement with regard to whether the distinctive elongated semi-oval shape and internal configuration of the roe of permitted species may be accepted as an absolute indicator of <i>kashrut</i> or, alternatively, that some authorities had visual evidence that the fish lost its scales upon emerging from the water. See <i>Pri Ḥadash, Yoreh De‘ah</i> 83:8.</i>
  The Babirusa: A Kosher Pig?
  An Associated Press news bulletin dated November 13, 1984 reported that a species of swine closely related to the domestic pig is a kosher animal. The author alleged that the babirusa, whose native habitat is Indonesia, possesses two stomachs and suggested that it also chews the cud. Since, in common with all swine, the babirusa also has split hoofs, the animal was alleged to possess the physical characteristics of a kosher species. The news item appeared in many American newspapers and was featured on television newscasts. 
  The Associated Press bulletin was based upon a report published by the National Research Council (NRC). In an article appearing in the Fall, 1984 issue of <i>Horizons</i>, a publication of the U.S. Agency for International Development, John Daly writes:
  The babirusa stands out among pig-like animals because of its unique stomach, similar to a ruminant's…. This may make the babirusa a more efficient meat producer in some environments. In addition, cultures that do not eat swine might accept the babirusa.17<i class="footnote">P. 28.</i>
  In Israel, the report of the existence of an animal whose meat is allegedly indistinguishable from that of a pig in taste and appearance, but which is nevertheless kosher, created somewhat of a sensation. Newspaper accounts indicate that a number of prominent rabbinic authorities whose views were solicited were understandably incredulous and reserved decision. In particular, some scholars expressed concern with regard to whether the configuration of the animal's toes manifests the criteria of split hoofs which are the hallmark of a kosher species. <i>Gilyon Maharsha, Yoreh De'ah</i> 79:1, citing earlier authorities, states that the hoofs must be split along their entire length. The London <i>Jewish Chronicle</i>, November 16, 1984, p. 1, quoted an anonymous Anglo-Jewish scholar who expressed concern that the animal may have been the product of crossbreeding between a kosher animal and the non-kosher pig. 
  The phenomenon of a kosher pig is not entirely unknown in rabbinic literature. R. Hayyim ibn Attar, <i>Or ha-Hayyim</i>, Leviticus 11:3, quotes an unidentified aggadic source which comments: "Why is it named <i>'ḥazir'</i>? Because it will one day 'return' to become permissible," i.e., the pig will return to its pre-Sinaitic status as a permitted source of meat. In his commentary on Leviticus 11:7. <i>Or ha-Hayyim</i> questions the meaning of this statement. It is a fundamental principle of Judaism that the Torah is immutable; hence a pig which does not chew its cud cannot at any time be declared kosher.18<i class="footnote">Cf., however, <i>Va-Yikra Rabbah</i> 13:3; <i>Midrash Shoḥer Tov</i>, Ps. 146; and R. Joseph Albo, <i>Sefer ha-Ikkarim</i>, III, chapters 13-19.</i> Accordingly, <i>Or ha-Hayyim</i> comments that the phrase "but it does not chew its cud" which occurs in Leviticus 11:7 is conditional in nature, i.e., the pig is forbidden only so long as it does not chew its cud, "but in the eschatological era it will chew its cud and will 'return' to become permissible." Indeed, the etymological analysis presented by <i>Or ha-Hayyim</i> would lead to acceptance of a cud-chewing pig not only as a kosher animal but as a harbinger of the eschatological era as well. A similar statement is made by Rema of Panu, <i>Asarah Ma'amarot, Ma'amar Hikur Din</i>, II, chapter 17.19<i class="footnote">See also R. Moses Sofer, <i>Torat Mosheh</i>, Deuteronomy 14:8.</i>
  The comments of <i>Or ha-Hayyim</i> are, however, sharply challenged by R. Baruch ha-Levi Epstein, <i>Torah Temimah</i>, Leviticus 11:7, sec. 21. <i>Torah Temimah</i> asserts that the only rabbinic statement even vaguely resembling that which is quoted by <i>Or ha-Hayyim</i> is an etymological comment on the word <i>"ḥazir"</i> found in <i>Va-Yikra Rabbah</i> 13:5 and repeated in <i>Kohelet Rabbah</i> 1:28.20<i class="footnote">See also <i>Tanḥuma Yashan, Shemini</i> 14.</i> In context, the midrashic statement is clearly an allegorical reference to the eschatological role of gentile nations in causing the return of Israel to her original state of grandeur. A similar interpretation was presented much earlier by Rabbenu Baḥya in his commentary on Leviticus 11:7.21<i class="footnote">For other analyses of this midrashic statement see sources cited by R. Menachem Kasher, <i>Torah Shelemah</i>, vol. XXVIII, Leviticus 11:7, sec. 34. It should be noted that <i>Or ha-Ḥayyim</i>’s version of this midrashic statement is quoted verbatim by Abarbanel, <i>Yeshu‘ot Meshiḥo, ha-Iyyun ha-Revi‘i</i>, chapter 3, and attributed to <i>Bereishit Rabbah</i>. However, Abarbanel states that <i>Bereishit Rabbah</i> itself explains the comment as referring to the “devouring” of Edom rather than to the consumption of swine. Rabbenu Baḥya also cites a variant reading similar to that of <i>Or ha-Ḥayyim</i>. Rabbenu Baḥya himself, however, interprets that version allegorically. Recanati, Leviticus 11:7, Ritva, <i>Kiddushin</i> 49b, and <i>Teshuvot Radbaz</i>, II, no. 828, similarly deny that the swine will ever be permissible and offer allegorical interpretations of the midrashic comments.</i>
  Whether or not there is a specific midrashic reference to a pig which chews the cud, it would appear that an animal which has split hoofs and which also chews its cud is <i>ipso facto</i> kosher. Indeed, Jewish law does not even deem it essential to examine an animal for the manifestation of both split hoofs and the chewing of the cud. Leviticus 11:4-6 enumerates three species of ruminants which chew the cud but which do not have split hoofs: the camel, the rock-badger and the hare. Deuteronomy 14:7 names a fourth animal, the <i>shesu'ah</i>, which is described as chewing the cud but as not having cloven hoofs. This animal is described by the Gemara, <i>Hullin</i> 60b, as a creature which has two backs and two spinal columns. The Gemara, <i>Niddah</i> 24a, further explains that the <i>shesu'ah</i> is the progeny of a permitted species. In effect, the birth of a <i>shesu'ah</i> is an anomaly. Both Leviticus 11:7 and Deuteronomy 14:8 name only one animal, the swine, which has split hoofs but does not chew its cud. The Gemara, <i>Hullin</i> 59a, on the basis of a pleonasm, regards these enumerated species, not as paradigmatic, but as exhaustive. Thus the Gemara comments, "The Ruler of the universe knows that there is no other beast that chews the cud and is unclean except the camel [and the other species enumerated by Scripture]" and similarly comments, "The Ruler of the universe knows that there is no other beast that parts the hoof and is unclean except the swine." These dicta pave the way for a determination that an animal may be declared kosher even without examination for the presence of both split hoofs and the chewing of the cud. The Gemara, <i>Hullin</i> 59a, notes that the absence of upper incisors and canines is a characteristic of all ruminants with the exception of the camel which has canines in both jaws.22<i class="footnote">The front teeth in the upper jaw of ruminants are replaced by a horny pad. The front teeth of the lower jaw are directed forward and, upon closing the mouth, simply press the grass tightly against this pad. When the head is jerked sideways the gum is cut through by the sharp edges of the lower front teeth. See <i>Encyclopedia Britannica</i> (Chicago, 1966), XIX, 752.</i> Accordingly, declares the Gemara, "If a man was walking in the desert and found an animal with its hoofs cut off, he should examine the mouth; if it has no upper teeth he may be certain that it is clean, otherwise he may be certain that it is unclean; provided, however, … he recognizes the young camel." The possibility that the animal may be a young camel must be excluded since, even though the young camel has no teeth, it will eventually develop canines. The Gemara explicitly negates the possibility that there may exist some other animal that lacks teeth, i.e., a ruminant that chews the cud but is non-kosher by virtue of its non-cloven hoofs. Thus, if it were to be shown that the babirusa lacks incisors and canines on its upper jaw it may be declared a kosher species on that basis alone. Absence of incisors and canines is itself evidence that the animal is a cud-chewing ruminant. 
  The Gemara continues with the description of another criterion by means of which an animal may be recognized as a member of a permitted species: "If a man was walking in a desert and found an animal with its hoofs cut off and its mouth mutilated, he should examine its flank; if it runs crosswise he may be certain that it is clean, but if not he may be certain that it is unclean; provided, however, he recognizes the <i>arod</i>….23<i class="footnote">Although the term <i>arod</i> is rendered as “wild ass” in the King James translation of Job 39:5, the identity of this animal cannot be determined with any degree of certainty.</i> Where should he examine the flesh? … Under the rump." In kosher species the flesh under the tail in the vicinity of the rump runs in a criss-cross fashion; one series of muscles runs downward so that that portion of the meat is readily torn vertically and another series of muscles runs transversely so that that portion of the meat is readily torn horizontally. The Gemara explicitly states that we are the recipients of a tradition received by Moses at Mount Sinai to the effect that the <i>arod</i> is the sole non-kosher animal manifesting this characteristic. Thus, if the babirusa indeed manifests this characteristic there would be yet additional grounds for assuming that it is a kosher species. 
  There is yet another means of recognizing a kosher species. The Mishnah, <i>Niddah</i> 51b, declares, "Every [species] which has horns has [split] hoofs," i.e., is a kosher species. According to Rabbenu Tam, cited by <i>Tosafot, Hullin</i> 59a, that dictum is accepted as a unanimous pronouncement and hence, as Maharsha, <i>ad locum</i>, explains, the presence of any type of horn is a sufficient criterion of <i>kashrut</i>. However, Rivan, also cited by <i>Tosafot, Hullin</i> 59a, maintains that this dictum reflects the opinion of R. Dosa who is reported to have declared, "Those that have horns need not be examined as to their hoofs" (<i>Hullin</i> 59b). According to Rivan, the Sages disagree with R. Dosa and require the presence of both horns and split hoofs. However, even according to Rivan, the Sages accept the presence of any type of horn as a sufficient criterion of the <i>kashrut</i> of the species provided that the animal also manifests split hoofs.24<i class="footnote">See <i>Bi’ur ha-Gra, Yoreh De‘ah</i> 79:3.</i> Thus, if an animal possesses split hoofs, the presence of horns is sufficient to guarantee that it is not a forbidden swine. Accordingly, <i>Shulḥan Arukh, Yoreh De'ah</i> 79:1, rules "… if its hoofs are split it is certain that it is clean, provided he recognizes a pig; if it has horns there is no possibility that it might be a pig and it is clean."25<i class="footnote">Cf., however, Rambam, <i>Commentary on the Mishnah, Niddah</i> 52b, and Maharsha, <i>ad locum</i>.</i>
  The Gemara, <i>Hullin</i> 59b, does indeed state that, in order to qualify as a distinguishing criterion of <i>ḥayyah</i> or "wild beast" whose <i>ḥelev</i> is permitted, the horn must be forked (according to Rashi: branched, like antlers; according to <i>Tosafot</i>: bent or hooked at the end) or, if not forked, the horn must be rounded (i.e., composed of tubes or scales, one over the other), pointed (or according to one interpretation advanced by Rashi, rounded and narrow) and notched (i.e., rough), and the notches must run one into the other.26<i class="footnote"><i>Ḥelev</i> is the fat which, in a sacrificed animal, was offered upon the altar. Since only “cattle” were offered as sacrifices, the fat of a <i>ḥayyah</i> or “wild beast” is permitted.</i> However, such distinctive horns are required only in order to determine that the animal is a <i>ḥayyah</i> or "wild beast" whose <i>ḥelev</i> is permitted; the presence of any type of horn is indicative of the fact that the animal is a member of a kosher species. Thus <i>Shulḥan Arukh</i> omits reference to the presence of a distinctive horn in declaring that the presence of horns is sufficient to exclude the possibility that an animal may be a pig.27<i class="footnote">See Maharsha, <i>Ḥullin</i> 59b, and <i>Maḥaẓit ha-Shekel, Oraḥ Ḥayyim</i> 586:3.</i>
  In discussing the status of the babirusa the <i>Jewish Chronicle</i> quotes the Sephardic Chief Rabbi of Israel, Rabbi Mordecai Eliyahu, as stating, <i>inter alia</i>, "…the question of its tusks is also relevant."28<i class="footnote">It may be noted that the word “babirusa” means “pig-deer” in the language of the indigenous populace of its native habitat. The natives assigned the animal this name because its tusks resemble the antlers of a deer. See E. P. Walker, <i>Mammals of the World</i>, 3rd edition (Baltimore, 1975), p. 1364.</i> The question of the babirusa's tusks, which are virtually perpendicular and point upwards in the manner of horns, is indeed relevant in the sense that the presence of horns would also, in and of itself, be sufficient to distinguish the babirusa from forbidden forms of swine. Coupled with split hoofs, the presence of horns would be sufficient evidence of the animal's <i>kashrut</i>. Horns, however, by definition, emerge from the head.29<i class="footnote">See Rambam, <i>Commentary on the Mishnah, Ḥullin</i> 59a.</i> Pictures of the babirusa show upwardly curved projections emanating from the area of the snout. Presumably, those tusk-like projections are rooted in the jaw or in the cheek, rather than in the head or skull, and, halakhically, would not be categorized as horns. Accordingly, the presence or absence of such tusks would be of no halakhic significance.30<i class="footnote">The presence of horns is a sufficient criterion of <i>kashrut</i>, but not a necessary criterion. Cf., Rambam, Rabad and <i>Maggid Mishneh, Hilkhot Ma’akhalot Assurot</i> 1:2.</i>
  Assuming that the babirusa manifests the requisite criteria of a kosher animal, the fact that it resembles a pig in appearance and taste is not sufficient grounds for banning its consumption as kosher meat. The Sages of the Talmud did indeed promulgate numerous edicts in order to prevent inadvertent transgression of biblical laws as the result of possible confusion between that which is permitted and that which is forbidden in situations in which the permitted and the prohibited closely resemble one another. Yet, absent specific rabbinic legislation, there are no grounds to forbid any matter which has not been expressly prohibited. 
  The earliest formulation of this principle occurs in a responsum of Rav Sar Shalom Ga'on, <i>Teshuvot ha-Ge'onim: Hemdah Genuzah</i>, no. 77. Sandwiches were apparently known and enjoyed as early as the geonic period since the interlocutor asks whether it is permissible "to make a bun and to place in it [a piece of] tail or fat meat." His concern was that the bread might crumble and the particles of bread which break off from the bun might later be eaten with cheese. It is because of such concern that rabbinic law declares bread containing either dairy or meat products to be non-kosher, unless the bread is baked in a distinctive manner. However, with regard to placing meat in the already baked bun, Rav Sar Shalom Ga'on answers unequivocally that there is no reason for concern since there is no decree of "our early teachers" prohibiting the eating of meat sandwiches. 
  There are, however, two logical possibilities that must be discussed which would have the effect of negating the conclusion that, upon manifesting the physical criteria of a permitted species, the babirusa may be considered a kosher animal. The possibility must be considered that the animal may have originated either as the result of crossbreeding between a kosher species and a swine or as the result of a genetic mutation.31<i class="footnote">Such a possibility with regard to sea creatures is considered by <i>Ma‘adanei Yom Tov, Ḥullin</i>, chap. 3, 67:5.</i> The contention that the babirusa may perhaps be the result of crossbreeding may be dismissed quite readily. The possibility of the emergence of an interspecies of this nature, particularly of one which is not sterile and can reproduce, is extremely unlikely, to say the least. From the halakhic vantage point it is regarded as impossible. Although the Gemara, <i>Bekhorot</i> 7a, accepts the possibility of animals of different species mating and producing offspring, it rejects the opinion which asserts that progeny may be born of a union between members of kosher and non-kosher species. 
  The possibility of a genetic mutation which is transmitted to future generations is much more within the realm of both scientific and halakhic possibility. The halakhah to be applied in the event of the occurrence of such a contingency is clear. Codifying a principle laid down in the Mishnah, <i>Bekhorot</i> 5b, <i>Shulḥan Arukh, Yoreh De'ah</i> 79:2, rules that the offspring of an unclean mother is non-kosher even if the animal itself manifests all the characteristics of a kosher animal. The comments of many authorities, particularly Shakh, Yoreh De'ah 79:4, and <i>Pri Megadim, Siftei Da'at</i> 79:1, indicate that the principle involved is that of <i>yoze</i>, i.e., anything which "emerges" from, or is produced by, an unclean animal is itself not kosher. It is on the basis of this principle that, for example, the milk of non-kosher animals is forbidden. 
  R. Hayyim ha-Levi Soloveichik, in his commentary on the Rambam, <i>Hilkhot Ma'akhalot Assurot</i> 3:11, explains this halakhic provision in an entirely different manner. R. Hayyim states that, in effect, an animal is a member of a given species, not because it possesses the distinctive characteristics of that species, but because it was born to a mother who is a member of that species. It is, then, maternal identity which is transmitted to progeny and which determines the species to which the offspring belong for purposes of halakhic classification. On the basis of either analysis, the offspring of a non-kosher animal is not kosher even if, as the result of genetic mutation, it manifests the criteria of a kosher animal.32<i class="footnote">With regard to other halakhic concerns, the Gemara in a number of instances records conflicting views as to whether or not paternal identity is also transmitted to progeny (<i>ḥosheshin le-zera ha-av</i>). However, since a non-kosher animal cannot sire offspring by mating with an animal of a kosher species, the question of “patrilineal succession” does not arise in this context. The issue might, however, arise in a different context, viz., in a situation in which an embryo is removed from the uterus of a pig and transferred to the uterus of a kosher animal. The offspring, conceived in the womb of a non-kosher animal but which gestates in the womb of a kosher animal from which it is born, would not be forbidden as <i>yoẓe</i>. Since it is the “product” of two animals, one kosher and the other non-kosher, the principle <i>zeh ve-zeh gorem</i> applies, i.e., when a second causal agent is present, the product is no longer regarded as having “emerged” from the non-kosher animal. However, the principle of <i>ḥosheshin le-zera ha-av</i> establishes that paternal identity is also transmitted to progeny and hence the offspring acquire the identity of the non-kosher father. In the case of an embryo or ovum removed from a non-kosher animal, it is arguable that the identity of the species of the animal which produced the ovum is transferred to the offspring even if paternal identity is not transferred in a like manner.</i>
  The two theories do, however, yield a halakhic difference with regard to the punishment to be administered for consuming the meat of an ostensibly "kosher" animal born to a non-kosher mother. If the animal is regarded as intrinsically non-kosher, the punishment is lashes; if the offspring is only the "product" of a non-kosher species, no lashes are administered for eating its flesh. There are also other halakhic ramifications which are contingent upon acceptance of one or the other of these theories. If the offspring is intrinsically non-kosher there is no punishment of <i>karet</i> for partaking of the animal's <i>ḥelev</i>, since the prohibition against partaking of <i>ḥelev</i> does not extend to the fat of non-kosher species which cannot be offered as sacrifices. Furthermore, if the animal is itself kosher, but forbidden as the "product" of a non-kosher animal, upon <i>sheḥitah</i> its flesh would not defile as carrion; if the animal is intrinsically not kosher, it would defile as carrion even if slaughtered by means of <i>sheḥitah</i>.33<i class="footnote">See <i>Pitḥei Teshuvah, Yoreh De‘ah</i> 79:1.</i>
  Although a clean animal born of an unclean animal is not kosher, absent evidence that such a phenomenon has occurred, there is no halakhic basis for suspecting that an animal manifesting the characteristics of a kosher species is in reality the offspring of a non-kosher animal. Were this not the case, no animal could be definitively accepted as kosher unless a witness was present at its birth to observe that, in actuality, it is the offspring of a kosher mother. The general halakhic principle is that such unlikely contingencies need not be contemplated. 
  Thus it might appear that there are no halakhic grounds for a suspicion that the babirusa is a genetic mutation of a forbidden species of swine and hence itself non-kosher. There are, however, grounds for skepticism with regard to the permissibility of the babirusa. The Gemara, <i>Hullin</i> 109b, declares:
  For everything God has forbidden us He has permitted us an equivalent: He has forbidden us blood but has permitted us liver; He has forbidden us intercourse during menstruation but has permitted us the blood of purification; he has forbidden us the fat of cattle but has permitted us the fat of a wild beast; He has forbidden us swine's flesh but has permitted us the brain of the <i>shibbuta</i>….
  If the babirusa is indeed a "kosher pig" it is a much more obvious example of a kosher counterpart to the non-kosher swine than is the brain of the fish known as the <i>shibbuta</i>. Moreover, the Gemara, <i>Hullin</i> 80a. states that the only animals which are kosher are the ten species specifically enumerated in Deuteronomy 14:4-5. This dictum is recorded as a normative ruling by Rambam, <i>Hilkhot Ma'akhalot Assurot</i> 1:8. There are, of course, other kosher animals which one might regard as distinct species, including perhaps the <i>kevi</i> (or <i>koi</i>), which according to one talmudic opinion is an "independent species." Those animals, for purposes of halakhic classification, are subsumed under one or another of the species enumerated by Scripture.34<i class="footnote">Cf., <i>Arukh ha-Shulḥan, Yoreh De‘ah</i> 79:41.</i>
  Thus, assuming that the babirusa manifests the criteria of a clean animal, to be regarded as kosher it must be classified, not as a "kosher pig," or even as an independent species, but as a subspecies of one of the ten kosher animals enumerated by Scripture. Given its biological and anatomical similarity to the swine, the possibility that it is a mutation of a swine appears more cogent. Since, in this case, there are grounds for suspecting that the babirusa is "a clean animal which has been born of an unclean animal" it would appear to this writer that its status would be, if not definitively non-kosher, <i>de minimus</i>, that of a <i>safek</i>, i.e., an animal of doubtful <i>kashrut</i>. 
  In any event, it would not be permitted to eat the babirusa because of an entirely different consideration. According to a number of latter-day authorities, it is forbidden to eat the meat of any hitherto unknown species even if it possesses the characteristics of a kosher animal and does not in any way resemble a non-kosher species. <i>Hokhmat Adam</i> 36:1 declares, "… we eat only [those animals] with regard to which we have received a tradition from our fathers." Therefore, "it is forbidden for us to eat of the 'wild beasts' [<i>ḥayyot</i>] except the deer which is recognized by us." This rule is stated by Rema, <i>Yoreh De'ah</i> 82:3, with regard to birds and is extended by <i>Hokhmat Adam</i> to encompass animal species as well. <i>Hokhmat Adam</i>'s position appears to be based upon a comment of Shakh, Yoreh De'ah 80:1, although the thrust of <i>Shakh's</i> comment is understood in a different manner by <i>Pri Megadim, Siftei Da'at</i> 80:1. <i>Hokhmat Adam</i>'s ruling is endorsed by <i>Hazon Ish, Yoreh De'ah</i> 11:4-5, as an established practice.35<i class="footnote">It must be noted that <i>Ḥazon Ish</i> demonstrates that the ruling of <i>Ḥayyei Adam</i> applies to both <i>ḥayyot</i> and <i>behemot</i> without distinction and, moreover, shows that, since this ruling is predicated upon the comment of Shakh, any distinction between <i>ḥayyot</i> and <i>behemot</i> would be untenable. Cf., R. Moses Tendler, <i>Chavrusa</i>, March, 1985, p. 3.</i>
  In point of fact, the entire discussion is only of academic interest. <i>Science News</i>, vol. 126, no. 2 (November 24, 1984), p. 327, reveals that babirusas are to be found in this country in the Los Angeles Zoo. A zoo official, Dr. Warren Thomas, is reported as stating that the babirusa is not a ruminant and does not chew it's cud.36<i class="footnote">See also <i>The Wall Street Journal</i>, March 27, 1985. p. 37, and L. Krishtalka, “Missing Links,” <i>Carnegie Magazine</i>, May-June, 1985, p. 39</i>
  In actuality, it has been known for some time that the babirusa is not a true ruminant. With the exception of an early investigation conducted by Willem Vrolik, <i>Recherches d'anatomie comparée sur le Babyrussa</i> (Amsterdam, 1844) and a brief discussion by a noted nineteenth-century English anatomist and paleontologist, Sir Robert Owen, <i>On the Anatomy of Vertebrates</i> (London, 1868), III, 465, the sole scientific study of the babirusa is the 1940 report of D. Dwight Davis, "Notes on the Anatomy of the Babirusa," <i>Field Museum of Natural History</i>, XXII, 363-411. That study was based upon post-mortem dissection of a babirusa that had died in the Chicago Zoo. Davis, p. 388, reports that, although the animal's stomach, except for the absence of an omasum, is strikingly similar to that of the domestic sheep, the arrangement of the stomach "is scarcely such that true rumination could take place … and it is certain that the similarity is due to convergence, and consequently is without such phylogenetic significance."37<i class="footnote">See also Davis, <i>loc. cit.</i>, p. 391.</i> Moreover, the non-ruminating character of the babirusa was recognized well over a hundred years ago by Sir Robert Owen, in his previous cited discussion.38<i class="footnote">See also E. P. Walker, <i>Mammals of the World</i>, p. 1355, and L. Krishtalka, “Missing Links,” <i>Carnegie Magazine</i>, May-June, 1985, p. 39.</i>
  Moreover, a report issued by the National Research Council. <i>Little-Known Asian Animals with a Promising Economic Future</i> (Washington, 1983), p. 89, states, "The male has large upper canines that grow upwards, piercing right through the flesh of the snout and curving back and downwards towards the forehead without even entering the mouth." Thus the tusks of the babirusa are not horns, but are described as canines. As has been indicated earlier, the Gemara, <i>Hullin</i> 59a, declares that the presence of incisors or canines is a conclusive indication that the animal does not chew the cud. As stated by Rabbi Eliyahu, the "question of [the babirusa's] tusks" is certainly "relevant." Indeed, it is more than relevant; it is dispositive. 
  It is of interest to note that R. Meir Leibush Malbim, in his commentary on Leviticus 11:7, describes an animal remarkably similar to the babirusa. Malbim reports that the animal, which he calls a "tai'asu," is found in the tropical areas of South America and possesses four stomachs. Although Malbim is unclear, and perhaps even contradictory, with regard to whether this animal chews the cud, he reports that it has incisors in the upper jaw. As has been noted earlier, absence of incisors is regarded by the Gemara. <i>Hullin</i> 59a, as proof that the animal chews its cud and the converse is regarded as proof that it is unclean, i.e., the presence of incisors is incompatible with chewing the cud. Accordingly, it must be assumed that Malbim intends us to understand that the <i>tai'asu</i> does not chew its cud. Malbim declares the animal to be non-kosher and points to its physical characteristics in order to illustrate the use of the future tense in the phrase "<i>ve-hu gerah lo yigar</i>—it will not chew the cud." According to Malbim, the verse alludes to this particular species of swine and declares that, although it has developed some characteristics of a ruminant, viz., four stomachs, it remains non-kosher because "it will not chew the cud."
  The animals described by Malbim are peccaries originally known as dicotyles and now usually referred to as tayassu. Their anatomical characteristics are described in some detail by Georges Cuvier, <i>Règne Animal</i> (Paris, 1817), I, 237, and W. H. Flower and R. Lydekker, <i>An Introduction to the Study of Mammals Living and Extinct</i> (London, 1891), p. 289. as well as by Sir Robert Owen in his previously cited work, <i>On the Anatomy of Vertebrates</i>, III, 465. A more recent discussion, in which the animals are referred to as tayassu, appears in E. P. Walker, <i>Mammals of the World</i>, 3rd edition (Baltimore, 1975), pp. 1355 and 1365-66. The animal is indeed found only in the Western Hemisphere, as reported by Malbim. The tayassu is found primarily in Central and South America, although Walker states that it is also found in Texas, New Mexico and Arizona. Malbim appears to be inaccurate in describing the tayassu as possessing a four-chambered stomach. Sir Robert Owen states that the stomach is divided into three compartments, while E. P. Walker reports that although its stomach is more complex than that of the pig, it is only two-chambered. All agree on the crucial point, viz., that the tayassu is non-ruminating. 
  Were the babirusa to chew the cud as originally alleged, its <i>kashrut</i> status would, at best, have been doubtful. However, since all available evidence indicates that it lacks the physical criteria of a kosher animal, it must, of course, be regarded as non-kosher. 
  Lanolin
  Lanolin is the purified form of a secretion that forms a grease or wax-like coating on the fleece of sheep. It is generally obtained by scouring raw wool in a soap solution and centrifuging the solution in order to recover the grease. The grease is then refined, bleached, deodorized, and dried. Lanolin and its derivatives are most commonly used as emollients and emulsifiers in cosmetic and pharmaceutical preparations but, at times, lanolin is also employed in the manufacture of chewing gum and possibly as an additive designed to serve as an emulsifier in the manufacture of other food products. 
  Although sheep are kosher animals, a question arises with regard to the <i>kashrut</i> of lanolin by virtue of the fact that it is secreted by the animal prior to slaughter. To this writer's knowledge, the sole discussion of the <i>kashrut</i> of lanolin that has appeared in rabbinic literature is that of R. Joshua Moshe Aronzon, <i>Yeshu'at Mosheh</i>, II, no. 81. Rabbi Aronzon's chief concern is that lanolin is derived from what he categorizes as drops or globules of fat secreted by the animal. The Gemara, <i>Bekhorot</i> 6b, explicitly describes fat removed from a living animal as a form of "flesh from a living animal" which is prohibited by biblical law. Accordingly, were lanolin a form of fat, it would be forbidden for this reason. In point of fact, this description of the nature of lanolin is inaccurate. The error, however, is readily understandable since the material from which lanolin is derived is commonly referred to as "wool fat."39<i class="footnote">See <i>Encyclopedia Britannica</i> (Chicago, 1966), XIII, 707.</i> In fact, lanolin is derived from a lipid excretion of the sheep's skin.40<i class="footnote">E. Vernon Truter, <i>Wool Wax</i> (London, 1956), p. ix.</i> The material is produced in the sebaceous gland embedded in the basal layer of the epidermis.41<i class="footnote"><i>Ibid.</i>, p. 8.</i> Contraction of the arrector muscle compresses an attachment at the base of each lobe of the sebaceous gland and squeezes the glandular secretion onto the fiber.42<i class="footnote"><i>Ibid</i>., p. 9.</i> Halakhically, the secretion must be regarded as a form of "<i>yoze</i>" i.e., an excretion or emission, of a forbidden substance. The excretion of a forbidden substance is, generally speaking, also forbidden, although such prohibition is less severe than the prohibition associated with the forbidden substance itself.43<i class="footnote">See <i>Bekhorot</i> 6b and <i>Yoreh De‘ah</i> 81:1. The prohibition regarding secretions is not inherent in the negative commandment forbidding the substance itself but is in the form of a separate positive commandment to abstain even from secretions of forbidden substances. Prohibitions derived from positive commandments are less severe than negative prohibitions and entail no statutory punishment.</i> The status of lanolin as the excretion of a forbidden substance is also addressed in Rabbi Aronzon's discussion, but it is apparently his understanding that lanolin is a derivative of the fat of the animal that leads him to the conclusions that he formulates. Rabbi Aronzon permits the use of lanolin in detergents and cleaning agents for utensils utilized in the manufacture and preparation of food only if the lanolin has been rendered unfit for consumption by beast or man (<i>nifsal me-akhilat kelev</i>), but somewhat equivocally comments that the use of lanolin as a food additive requires further evaluation. 
  However, a proper understanding of the nature of lanolin yields an entirely different conclusion. Milk secreted by the mammary glands of kosher species is permitted despite the fact that it is emitted by an entity which is itself forbidden, i.e., a living animal which has as yet not been rendered permissible for food by means of ritual slaughter. The Gemara, <i>Bekhorot</i> 6b, adduces a series of biblical verses in demonstrating that milk is, in effect, an exception to the prohibition against <i>yoze</i>, i.e., the excretion or emission of forbidden substances. The milk of non-kosher species is, however, forbidden because it is secreted by an animal which is itself non-kosher. 
  The status of other substances secreted by living (kosher) animals is the subject of dispute. The status of such substances is rooted in a controversy concerning the permissibility of "milk-water" (<i>mei ḥalav</i>). As described by <i>Bet Yosef, Yoreh De'ah</i> 81, "milk-water" is the residual liquid obtained by first boiling those components of milk which remain after the milk itself has been turned into cheese and then skimming off the solids which rise to the top. <i>Tur Shulḥan Arukh, Yoreh De'ah</i> 81, records two opposing views regarding the <i>kashrut</i> of this liquid: R. Eliezer forbids <i>mei ḥalav</i> on the grounds that only milk is explicitly permitted by Scripture and hence milk alone is exempted from the prohibition against eating foodstuffs which are emitted by non-kosher substances. Rabbenu Simchah permits <i>mei ḥalav</i> on the grounds that, with the dispensation for consumption of milk, <i>mei ḥalav</i> became permitted as well. It is the latter opinion that is regarded as authoritative by <i>Tur Shulḥan Arukh</i>. 
  The nature of Rabbenu Simchah's reasoning is not immediately clear. Does he regard "milk-water" as simply a component of milk which is an explicitly permitted substance? If so, substances other than milk that are secreted by living animals remain forbidden. Or does he concede to R. Eliezer that "milk-water" is not milk, but, nevertheless maintains that "milk" serves as a paradigm and that, in permitting the milk of kosher species, Scripture has entirely exempted from the prohibition of <i>yoze</i> any and all substances derived from living (kosher) animals?
  It seems evident that <i>Bet Yosef, loc. cit., s.v. ḥalav behemah</i>, understands Rabbenu Simchah's ruling as reflecting the latter analysis, i.e., as permitting <i>all</i> secretions of living kosher animals. <i>Tur Shulḥan Arukh</i> rules that the urine of non-kosher species is a forbidden substance but that the urine of a kosher species is not a forbidden substance. <i>Bet Yosef</i> finds this entirely compatible with the position of Rabbenu Simchah who permits "milk-water." <i>Bet Yosef</i>'s statement is cogent only if it is regarded as predicated upon the assumption that Rabbenu Simchah regards all substances secreted by kosher animals to be permissible.44<i class="footnote">See also <i>Levush, Yoreh De‘ah</i> 81:5 and <i>Ḥazon Ish, Yoreh De‘ah</i> 12:6. Rabbi Aronzon seems to believe that there is some doubt with regard to this point. Apparently he did not realize that the further comments of <i>Bet Yosef</i> seeking another rationale for the permissibility of urine are advanced in explication of the position of R. Eliezer rather than of the normative position of Rabbenu Simchah. See also, <i>Baḥ, ibid., s.v. u-mah-she-be-ketav</i>.</i>
  Noting a further problem, Rabbi Aronzon points out that, even if it is regarded as kosher, lanolin may contain an admixture of blood and hence its use may be prohibited because the blood cannot be extracted from the lanolin. In support of that position he cites a controversy recorded by Rosh, <i>Berakhot</i> 6:24 regarding the <i>kashrut</i> of musk: "Some say that musk is the 'sweat of an animal,' but it is more correct [to say] that it is a specific animal that has a hump in its throat45<i class="footnote">In point of fact, musk is secreted by male animals of the species <i>moschus moschiferus</i> or musk deer, a species native to the mountains of Nepal, Tibet and Mongolia. The secretion accumulates in a pouch or musk pod situated between the anus and the sex organs. See <i>Encyclopedia Britannica</i> (Chicago, 1966), XV, 1093 and Kurt Bauer and Dorothea Garbe, <i>Common Fragrance and Flavor Materials</i> (Weinheim, 1985), p. 174.</i> and [that] first there is collected therein a type of blood and then it turns into musk. R. Zechariah ha-Levi forbade it to be eaten because of fear of [an admixture of] of blood, while Rabbenu Yonah explained that it is possible to advance a reason for permitting [musk] by declaring that it is <i>pirsha be-alma</i> (i.e., merely a nonedible derivative rather than a foodstuff)." Rabbi Aronzon's concern is based upon his assumption that lanolin is a form of animal fat and, as noted by Shakh, Yoreh De'ah 75:8, all fat is presumed to contain blood and requires soaking and salting for its removal. Thus, unless lanolin is regarded as <i>pirsha be-alma</i>, it would be forbidden because of the blood that it must be presumed to contain. However, since blood is present only in the flesh of an animal, there is no such presumption with regard to liquids secreted by an animal, e.g., urine. Hence, if it is recognized that lanolin is a glandular secretion, it would be entirely permissible. Although musk is also a liquid secretion, it is apparently recovered by drying and pulverizing the gland in which it is produced; hence, it is entirely possible for blood to enter the recovered product. This is not the case with regard to lanolin. It should also be noted that many latter-day authorities rule that musk is permissible on the grounds that any blood that may have been present has been rendered mere <i>pirsha</i>.46<i class="footnote">See <i>Teshuvot Radbaz</i>, III no. 909; <i>Taz, Oraḥ Ḥayyim</i> 116:2; <i>Eliyahu Rabbah, Oraḥ Ḥayyim</i> 114:4; <i>Teshuvot Mayim Rabbim</i>, no. 10; and <i>Mishnah Berurah</i> 116:7. Cf., however, <i>Magen Avraham, Oraḥ Ḥayyim</i> 116:3; <i>Levush, Yoreh De‘ah</i> 81:1; <i>Pri Megadim, Eshel Avraham, Oraḥ Ḥayyim</i> 116:3; <i>Teshuvot Sho’el u-Meshiv, Mahadura Kamma</i>, III, no. 122, <i>s.v. omnam; Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim</i>, no. 135; <i>Teshuvot Zemaḥ Ẓedek, Yoreh De‘ah</i>, no. 67, sec. 6. See also <i>Ḥazon Ish, Yoreh De‘ah</i> 12:7.</i>
  Moreover, as Rabbi Aronzon notes, there is reason to assume that even those authorities who forbid the use of musk in food products would permit the use of lanolin as a food additive. <i>Magen Avraham, Oraḥ Hayyim</i> 216:3, forbids the use of musk, but nevertheless concedes that were the secretion to be "mere dust" before being made into musk it would be permissible; his sole problem is that this fact is unknown. The principle established by <i>Magen Avraham</i> is, however, clear: a substance is not forbidden as <i>yoze</i> unless it is edible at the time it is secreted; a secreted substance that is inedible at the time of its secretion, or becomes inedible thereafter, remains permissible even if its nature is such that it will develop naturally into, or be used in conjunction with, a proper foodstuff.47<i class="footnote">See R. Moses Feinstein, <i>Iggerot Mosheh, Yoreh De‘ah</i>, II, no. 24, who employs this argument as one of his grounds for permitting the use of confectioner’s glaze.</i> Thus, a bird born of an egg laid by a <i>tereifah</i> is kosher: The egg, itself the <i>yoze</i> of a forbidden substance, becomes putrid before the embryo develops. Although the egg remains a potential food product even in its putrid state, the bird hatched from the egg is kosher because the egg earlier became inedible.48<i class="footnote">See also R. Yitzchak Ze’ev ha-Levi Soloveitchik, <i>Ḥiddushei Rabbenu ha-Griz ha-Levi</i> (Jerusalem, 5732), III, <i>Nazir</i> 50a.</i> [This is in contradistinction to the principle governing the consumption of the forbidden substance proper, i.e., that so long as the forbidden foodstuff is designed for use in conjunction with an edible food product it remains forbidden even if the forbidden substance is itself inedible. The best example of the application of that principle is the prohibition against use of sourdough itself on Passover. Although sourdough itself cannot be eaten either by man or beast, when added to dough, it plays a highly significant role in the baking of bread. Since this is the function and purpose of sourdough it is forbidden even though it is itself totally inedible.]49<i class="footnote">According to all authorities a foodstuff which does not ordinarily enter into the processing of other food products and itself becomes unfit for consumption by man or beast may be eaten even if the foodstuff in question is later rendered fit for human consumption. For a discussion of the circumstances under which foodstuffs which have been rendered inedible for human consumption (and which do not enter into, or contribute to, the processing of other food products) may be regarded as permissible substances and the various opinions concerning this matter see sources cited in <i>Pri Megadim, Mishbeẓot Zahav, Yoreh De‘ah</i> 1031:1, and <i>Encyclopedia Talmudit</i>, II (Jerusalem, 5709), 91 as well as <i>Teshuvot Ḥelkat Yo’av, Yoreh De‘ah</i>, no. 11 and <i>Ḥazon Ish, Oraḥ Ḥayyim</i> 116:2 and 116:7.</i> Lanolin, in all likelihood, is entirely inedible when secreted as wool grease. Moreover, it should be noted, the recovery process, which most commonly consists of scouring with warm water containing soap and sodium carbonate,50<i class="footnote">Truter, <i>Wool Wax</i>, p. 107.</i> presumably involves use of substances that impart a foul taste to the lanolin and thereby render it unfit for consumption. Once a product has been rendered unfit for consumption, it is no longer a forbidden substance and there is no prohibition against its dilution in other food products. 
  
  Chapter IV Communal Issues
  
  <i>Twelve tribes are deemed a community; eleven tribes are not deemed a community.</i>
  HORIYOT 3a
  <i>The Divine Presence does not rest other than upon a community.</i>
  SEDER OLAM RABBAH 15
  <i>Torah zivah lanu Mosheh, morashah, kehillat Ya'akov</i>—Moses commanded us the Torah, a legacy unto the community of Jacob" (Deuteronomy 33:4). The concept of a <i>kahal</i> or <i>kehillah</i> far transcends its translation as "community" or "congregation." The concept is at once both inclusive and exclusive. It serves to include all who received the Torah at Sinai, without exclusion or exception, and to exclude all who are not the recipients of that legacy. 
  The notion of the unity and solidarity of the community of Israel is directly related to this concept. Unity as an ideal is born, not of pragmatic considerations, but is posited upon a metaphysical construct. The Torah is given to the community as an entity. That entity, to be sure, is composed of individual members, but as a construct it resembles a single body comprised of a multiplicity of organs and limbs. Various organs and limbs participate in the fulfillment of the different commandments; similarly, fulfillment of the entire corpus of the commandments is possible only upon the participation and cooperative efforts of all members of the community. 
  In an aggadic comment recorded in <i>Berakhot</i> 6a, the Sages teach that God binds <i>tefillin</i> upon himself. Man's <i>tefillin</i> contain the verse "Hear O Israel the Lord is our God, the Lord is One" which embodies the concept of divine unity. In a parallel manner, God's <i>tefillin</i> contain the verse "And who is like unto your people Israel, a nation one in the earth" (I Chronicles 17:21). The Hebrew phrase "<i>goy eḥad ba-arez</i>," rendered as "a nation one in the earth," should be understood as conveying a meaning more profound than a reference to Israel as a singular nation. The principle affirmed by God, viz., that the people of Israel constitute a nation "one in the earth" does not mean simply that Jews represent an exemplary or even singular people. Were that the concept embodied in this verse, there would be little to warrant its inclusion in the <i>tefillin</i> of the Deity as a parallel to Israel's proclaimation of the unity of God. The verse inscribed in God's <i>tefillin</i> is a corollary to that incorporated in the <i>tefillin</i> worn by man. In metaphorically donning <i>tefillin</i> that include this verse, God affirms that the people of Israel, <i>imitatio Dei</i>, constitute a "unity in the world." Divine <i>tefillin</i> reflect the unity of Israel, just as man's <i>tefillin</i> testify to the unity of God. The term "<i>goy eḥad</i>," as the expression of a concept analogous to that of divine unity, should be understood as expressing the unitary nature of the people of Israel and an affirmation of the focal nature of that characteristic as an essential attribute of their peoplehood. 
  To be sure, the unity of the people of Israel is not identical to the unity of God. <i>Klal Yisra'el</i> is the aggregate of individual Jews. But it is an aggregate in which each of the components is endowed with the attributes of the entirety; it constitutes a unity in which every member can attain the spiritual endowment of the genus. God's <i>tefillin</i> demonstrate His pride in the singular capacity of the people of Israel to achieve a high degree of spiritual attainment, a propensity enjoyed by Israel, both as a community and as individuals. 
  Jews, as a people, are endowed with unique spiritual potential. Over a period of millenia, they have jealously restricted membership in the community of Israel with a tenacity born of an awareness that the unique mission of our people can be fulfilled only by the community as an entirety. Acceptance into the spiritual fellowship of Israel of persons who do not share the same faith-commitments, or of individuals who are not integrated into the halakhic corpus of Israel, can only result in a diminution of the Divine Presence and frustration of the divinely ordained purpose in the election of Israel. Moreover, compromise of principle in the name of unity constitutes a self-contradiction. A unity whose value and very meaning is derived from the sharing and promotion of a common faith-commitment cannot possibly admit of any dilution of that commitment. The entity known as the "community of Jacob" derives its <i>raison d'être</i> from its legacy which consists of the Torah received and transmitted by Moses at Sinai. By the same token, the mission of the people of Israel can be brought to fruition only when all of Israel is united in that common endeavor for, in the words of the Sages, "Twelve tribes are deemed a <i>kahal</i>; eleven tribes are not deemed a <i>kahal</i>."
  I. Parameters and Limits of Communal Unity
  Among the most pressing needs of the Jewish community in this country—and even more so in Israel—is the need for adequate communication between the various diverse sectors of which it is comprised. Absence of common cause directed toward common concerns, frequent misunderstandings and even acrimonious disputes between ideologically divergent factions of the community are directly attributable to simple lack of communication. The transcendent mandate of <i>ahavat Yisra'el</i> and our sacred obligation to reach out to every Jew with concern and love require that we actively seek areas of ongoing contact and cooperation. Unity within the community is clearly desired by all for reasons which are both ideological and pragmatic in nature. 
  Unity, not unlike mother love and apple pie, receives the approbation of one and all. Why, then, is the very quest for unity likely to be so divisive? The answer is to be found in the agenda of many—but not all—of the exponents of this utopian ideal. 
  <i>Tafasta merubah lo tafasta</i>—one's reach ought not to exceed one's grasp. There are matters on which persons of diverse <i>Weltanschauungen</i> can neither agree nor cooperate—and indeed no one who espouses the concept of religious, moral or intellectual pluralism should anticipate either cooperation or agreement in such matters. One to whom the taking of fetal life is anathema cannot be expected to endow an abortion clinic. A pacifist can hardly be expected to participate in war games. A Marxist is an unlikely candidate for the position of Vice-President in Charge of Reducing Workers' Wages. The Jewish community is hardly monolithic, monoprax or monodox. No responsible call for unity has ever been predicated upon a platform calling for the setting aside of all differences. Rather, it has consisted of a call for (1) agreement to respect differences which do indeed exist; and (2) the forging of bonds of cooperation between various sectors within the Jewish community in order to promote goals and ideals to which we are all committed. 
  Were the agenda to consist of the second item exclusively, the goal would not be unattainable; certainly, there would exist no impediment rooted in principle or ideology. Problems arise with regard to the first item which is—not improperly—regarded by many as a necessary condition for the achievement of the second. Agreement to respect differences which do indeed exist may mean one of two things. Minimally, respect connotes awareness and concomitant abjuration of antagonistic words and deeds. On a different level, respect also entails acceptance. Acceptance is quite different from toleration. Linguistically, "toleration" is a term used to describe a mode of thought and behavior vis-à-vis that which is the subject of disdain. Individuals, each of whom professes to possess absolute truth, may indulge one another and one another's beliefs simply because there exists no other viable <i>modus vivendi</i>. The alternative is mutual abnegation and mutual destruction. Since the negative effects of the alternative are contrary to the self-interest of each of the parties there emerges reciprocal agreement to exercise restraint in interpersonal and intramural relationships. 
  Acceptance differs from toleration in that acceptance requires the legitimization of pluralism, i.e., acceptance requires not only sensitivity to the fact that others have differing viewpoints and ideologies but also tacit affirmation that espousal of those views and ideologies is endowed with equal validity. This form of acceptance and respect is hardly un-known to Judaism. The dictum <i>elu va-elu divrei Elokim ḥayyim</i> certainly implies transcendental legitimacy for conflicting views even though protagonists engaged in the <i>milḥamtah shel Torah</i> do not and dare not give quarter to conflicting positions. Ravad, <i>Hilkhot Teshuvah</i> 3:7, followed by Duran, <i>Magen Avot</i>, chaps. 8-9, and Albo, <i>Sefer ha-Ikkarim</i>, Book I, chap. 2, was willing to accord precisely the same type of legitimacy even to certain contradictory propositions, each purporting to express theological truth. 
  Nevertheless, it is the attempt on the part of some to require conferral of legitimacy upon their ideologies and practices as a condition of unity which has made attainment of this goal impossible. It is the fear that cooperation within certain frameworks will constitute <i>de facto</i> acceptance and legitimization which creates an insurmountable barrier to unity in the eyes of that sector of our community which is dedicated to uncompromising adherence to the traditional teachings and practices of Judaism. 
  Halakhah is remarkably tolerant, nay, accepting, but only within certain rather clearly defined parameters. Those parameters involve matters of dogma primarily. To be sure, there are numerous controversies regarding various articles of faith which have never been resolved in a definitive manner. For the most part, such controversies pertain solely to matters of belief and have little, if any, impact upon how Jews comport themselves. It is presumably for this reason that adjudication between diverse doctrines concerning the nature of Providence or the unfolding of eschatological events was not deemed imperative. However, acceptance of Torah as the revealed word of God and acknowledgment of its immutable nature are matters which are both unbeclouded by controversy in traditional Jewish teaching and which are also of profound significance with regard to virtually every aspect of Jewish life. These principles are fundamental to an axiological system which serves to define the intrinsic nature of Judaism. The distinction between the practices of Ashkenazim and Sephardim, of Hasidim and Mitnagdim, could be accommodated by normative Judaism and ultimately find acceptance rather than mere toleration. Sadducees, Samaritans and Karaites could, at most, anticipate toleration by rabbinic Judaism. The halakhic differences between oriental and western Jews and even the theological differences between Hasidim and Mitnagdim could be accommodated within a single axiological system. The differences between Sadducees and Pharisees, between Karaites and Rabbanites, between Samaritans and Jews could not be accommodated precisely because of the renunciation of the Oral Law, in whole or in part, by these sectarian groups. Indeed, an ideological system based upon acceptance of the revealed and immutable nature of both the Written and the Oral Law could not accommodate such diversity without committing the fallacy of self-contradiction. 
  The fact that certain contemporary sectarians may reject these axioms or reinterpret them in a manner which makes it possible for them to claim equal or even exclusive authenticity for their beliefs is entirely irrelevant. The Sadducees proclaimed the Pharisees to be charlatans; the Karaites taught that Rabbanites had falsified the <i>mesorah;</i> the Samaritans asserted that Jews had emended the Pentateuch to serve their own purposes. In each case we are confronted with two conflicting axiological systems which cannot concede one another's validity. Rabbinic Judaism finds itself in an entirely analogous position at present.
  Judaism has always distinguished between those who transgress and those who renounce. Transgression is to be deplored, but transgression does not place the transgressor beyond the pale of believers. Renunciation—even without actual transgression—is a matter of an entirely different magnitude. Even misrepresentation of Halakhah is equated in Jewish teaching with falsification of the Torah and hence with denial of the divine nature of the content of revelation. 
  This position is eloquently expressed in R. Shlomoh Luria's analysis of a narrative recorded in <i>Baba Kamma</i> 38a. The Gemara 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 (viz., the Jewish owner of an ox which gores an 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. 
  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 Kamtza 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 as 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 Kamtza] so that he could 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. Yoḥanan thereupon remarked: Through the forbearance [<i>anvatnuto</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>anvatnuto</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 225, note 2), which renders this term as "humility." Yet Rashi renders the term <i>"anvatnuto"</i> as <i>"savlanuto,"</i> which must be translated as "his forbearance" or "his patience." Forbearance is a matter quite different from humility and does not seem to warrant censure. 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 Kamtza, 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 the face of the threat of death, destruction of the Temple and exile of the Jewish people. Perversion of the <i>mesorah</i>, even with regard to a single halakhah, is tantamount to denial of the Sinaitic revelation.1<i class="footnote">See also <i>Contemporary Halakhic Problems</i>, II, 136 ff. Cf., also this writer’s article in <i>Teḥumin</i>, vol. IX.</i>
  II
  Religious issues which contribute to divisiveness within our community must be seen against this backdrop. This is not to say that these issues must remain divisive. They are divisive only because the solutions demand conferral of equal legitimacy upon conflicting ideologies. Toleration, if not acceptance, is certainly within the realm of possibility provided that the protagonists are willing to accept neutral pragmatic solutions and do not insist upon scoring points on behalf of denominational interests. 
  An analysis of some of these issues—and why it is that they are destined to remain divisive—is in order. Among the most divisive issues in the United States is the <i>issur</i> against membership in the Synagogue Council of America and the New York Board of Rabbis promulgated by a group of eleven leading <i>Roshei Yeshivah</i> in 1956.
  The question of participation in such umbrella groups has often been portrayed as identical to that of <i>Austritt</i>, a matter that became the subject of controversy between Rabbi Samson Raphael Hirsch and Rabbi Seligman Baer Bamberger. Hirsch demanded that the members of his community resign from the Frankfurt <i>kehillah</i> which was dominated by Reform elements; Bamberger counseled against so divisive a step. However, the issue in the Synagogue Council and the New York Board of Rabbis dispute is not parallel to that involved in the Hirsch-Bamberger controversy. There are no grounds for assuming that even those who did not favor <i>Austritt</i> a century ago would approve participation in rabbinical and synagogal umbrella organizations. On the basis of the voluminous material written by the protagonists in the latter controversy it is clear that a paramount issue was the fear of possible negative influence which might be exercised by the members of the larger and more powerful group. Although Hirsch regarded secession to be mandated on ideological grounds, for many, the primary fear was that with the passage of time religious commitment and observance of the Orthodox might become diminished. Accordingly, so eminent an authority as R. Chaim Ozer Grodzinski2<i class="footnote"><i>Aḥi‘ezer: Koveẓ Iggerot</i>, ed. Aron Sorasky (Bnei Brak, 5730), I, no. 150.</i> was prompted to declare that Hirsch and Bamberger were in conflict, not over a matter of Halakhah, but over an assessment of socio-religious realia and that, therefore, the question is one which admits of diverse answers in different locales and at different times. The European <i>kehillah</i> system was primarily ethnic in nature; religious groups within the <i>kehillah</i> were, in some cities, permitted to conduct their own affairs in an autonomous manner. Under such circumstances membership in the central <i>kehillah</i>, it was argued, did not imply endorsement of the activities of organizations and institutions subsidised by the <i>kehillah</i>. Even opponents of <i>Austritt</i> refused to sanction such participation when those conditions did not obtain. It is often forgotten that Bamberger himself demanded <i>Austritt</i> in Carlsruhe, Vienna, Wiesbaden, and indeed in Frankfurt as well, at a time when the autonomy of Orthodox institutions was as yet not guaranteed.3<i class="footnote">See R. Simchah Bamberger, <i>Teshuvot Zekher Simḥah</i>, no. 130.</i>
  In contrast, the issue in the United States is not that of possible negative influence but of legitimization. Organizations such as the Synagogue Council of America and the New York Board of Rabbis are, by their very nature, religious organizations; their <i>raison d'etre</i> is to enable diverse religious groups to speak with a common voice. It is precisely a union of synagogal bodies <i>qua</i> synagogue bodies and/or clergymen <i>qua</i> rabbis which confers, or appears to confer, legitimacy and recognition of equal ideological validity. 
  And it is precisely for this reason that men of goodwill would not find this obstacle to be insurmountable. It would be entirely possible for the Synagogue Council of America to co-opt a number of secular Jewish organizations, to engage in a <i>shinuy ha-shem</i> and to emerge as an organization doing exactly what it does at present but without any implication of mutual recognition of doctrinal legitimacy. The New York Board of Rabbis would find a similar expedient a bit more difficult but by no means impossible. 
  On the Israeli scene, <i>giyur ke-Halakhah</i>, the most emotion-laden of problems, is the easiest to resolve. The Law of Return enacted in 19504<i class="footnote"><i>Sefer ha-Hukkim</i>, no. 51, p. 159.</i> confers automatic Israeli citizenship upon certain classes of people. Other persons are by no means excluded from Israeli citizenship. They must, however, undergo a naturalization process. The provisions of the Law of Return, as they apply to naturally-born Jews, pose no problem whatsoever. However, since the Law of Return confers citizenship in a like manner upon converts to Judaism a problem arises with regard to conversions performed under non-Orthodox auspices. 
  Halakhic Judaism can never sanction conversion in the absence either of ideological sincerity or of unreserved acceptance of the "yoke of the commandments." Thus no candidate may be accepted for conversion in the absence of a firm commitment to <i>shemirat ha-mizvot</i>. Sincerity of purpose in face of obvious ulterior motivation can be determined only by a competent <i>Bet Din</i> on a case-by-case basis. 
  Moreover, Halakhah recognizes the validity of a conversion only if performed in the presence of a qualified <i>Bet Din</i>. The qualifications for serving on a <i>Bet Din</i> are carefully spelled out by Halakhah. Conversion, even when accompanied by circumcision, immersion in a <i>mikveh</i>, as well as acceptance of the "yoke of the commandments," is null and void unless performed in the presence of a qualified <i>Bet Din</i>. 
  A number of proposals have been advanced in an attempt to satisfy the desires and aspirations of the Conservative and Reform movements without doing violence to the principles of the Orthodox.5<i class="footnote">See, for example, Jakob J. Petuchowski, “Plural Models within the <i>Halachah,” Judaism</i>, vol. 19, no. 2 (Winter, 1970), 77-89.</i> The crux of these proposals is that all conversions be recognized as valid, regardless of the auspices under which performed, provided that the halakhic requirements of immersion and circumcision are properly carried out. Conservative and Reform groups would undertake scrupulously to adhere to these halakhic requirements. 
  Alas, such proposals, well-meaning as they may be, are unacceptable because they ignore one crucial factor: conversion to Judaism is valid only if performed in the presence of a qualified <i>Bet Din</i>. In both the United States and in Israel—as in most countries—a judge cannot sit on the bench without first being sworn to uphold the laws of the land. In the absence of such a commitment his judicial decisions are legally meaningless—regardless of whether or not they reflect the law correctly. Jewish law does not require an oath—other than the one sworn by each of us at Mount Sinai—but it does state clear requirements for holding judicial office. One need not necessarily be an ordained rabbi in order to serve on a <i>Bet Din</i> for purposes of accepting a convert, but one must be committed to the acceptance of Torah—both the Written and Oral Law—<i>in its entirety</i>. One who refuses to accept the divinity and binding authority of even the most minor detail of Halakhah is, <i>ipso facto</i>, disqualified. Long before the Law of Return became a controversial issue, it was the stated opinion of halakhic authorities that ideological adherents of Reform and Conservatism fall into this category. One of the foremost rabbinic scholars of our generation, R. Moses Feinstein, has written in no less than nine different responsa which appear in his <i>Iggerot Mosheh</i> that all who identify themselves as non-Orthodox clergy must be considered to be in this category.6<i class="footnote">See <i>Iggerot Mosheh, Even ha-Ezer</i>, I, no. 135; <i>Even ha-Ezer</i>, II, no. 17; <i>Even ha-Ezer</i>, III, no. 3; <i>Even ha-Ezer</i>, IV, no. 13, sec. 3; <i>Even ha-Ezer</i>, IV, no. 78; <i>Yoreh De‘ah;</i> I, no. 160; <i>Yoreh De‘ah</i>, II, nos. 125 and 128; <i>Yoreh De‘ah</i>, III, no. 77. See also <i>Iggerot Mosheh, Even ha-Ezer</i>, I, nos. 76-77 and 82, sec. 11; <i>Yoreh De‘ah</i>, II, nos. 100 and 132; and <i>Even ha-Ezer</i>, IV, no. 77. Cf., also, <i>Iggerot Mosheh, Yoreh De‘ah</i>, III, no. 107.</i>
  For this reason, no serious halakhist can be receptive to any proposal which would provide for inclusion of non-Orthodox clergymen as participants in the statutory three-member <i>Bet Din</i> required for conversion. However, proposals have been advanced in some quarters calling for the establishment of a <i>Bet Din</i> composed of at least three qualified Orthodox rabbis with additional participants drawn from non-Orthodox groups. Such proposals are designed to provide the appearance of participation without providing a substantive role for non-Orthodox members of such a body. This proposal, it has been argued, should be acceptable to all. The concern of Orthodox Jews that validity of the conversion not be compromised by the absence of a qualified <i>Bet Din</i> is obviated by assuring that three participants are fully qualified. In effect, the Orthodox members—and the Orthodox members alone—would constitute the <i>Bet Din</i>. Other participants are entirely superfluous and hence, it is argued, from the vantage point of Halakhah they should be viewed as observers whose presence is non-participatory and hence entirely innocuous.*<i class="footnote">*See note end of chapter (p. 113).</i> Non-Orthodox sectors of the community would be able to ignore this salient consideration and to claim participation of their representatives as full-fledged members of the <i>Bet Din</i>. 
  In point of fact, there does exist a halakhic analogue which provides a paradigmatic distinction between participatory and non-participatory members of a <i>Bet Din</i>. <i>Halizah</i>, which provides for release from the obligations of levirate marriage, must be performed in the presence of a <i>Bet Din</i>. The <i>Bet Din</i> for <i>ḥalizah</i> is not composed of the usual three-man complement but consists of five persons. However, the additional two members of this body play no substantive role whatsoever. Since they are assigned no function other than that fulfilled by their mere presence, they are known in rabbinic parlance as "<i>die shtume dayyanim</i>," i.e., "the mute judges." The proposed <i>Bet Din</i> for conversion would be entirely similar to the <i>Bet Din</i> recognized by Halakhah for purposes of <i>ḥalizah</i>. Non-Orthodox participants would in fact be <i>"shtume dayyanim."</i>
  Establishment of a <i>Bet Din</i> of this nature is not acceptable to large sectors of the Orthodox community for reasons which, not surprisingly, find expression in the regulations governing the composition of the five-member <i>Bet Din</i> required for purposes of <i>ḥalizah</i>. 
  Although <i>ḥalizah</i>, in order to be efficacious, must be performed in the presence of a <i>Bet Din</i>, there is nothing intrinsic to that ritual which requires a five-member judicial body. The basic requirement for the presence of a <i>Bet Din</i> could be discharged by a three-man body; the enlarged bench is required solely for purposes of publicization of the ritual—either to assure that the woman's status be known to the public at large so that she will not subsequently marry a <i>kohen</i>, or in order that prospective suitors be aware that there is no longer an impediment to seeking her hand. The unusual presence of additional members, even though they are assigned no participatory function, serves to publicize the proceedings. 
  The non-participatory nature of the additional two members is reflected in the seating arrangements employed. According to some authorities, the two additional members are assigned seats opposite the three members who constitute the <i>Bet Din</i> proper; others maintain that it is the practice for the additional members not to be seated opposite the three-man panel but at the side of the bench or row of seats occupied by the three-member <i>Bet Din</i>. 
  Logically, since the additional two members are not participants in the <i>Bet Din</i>, there is no intrinsic reason why they must be qualified to serve as judges. For example, Jewish law provides that members of a <i>Bet Din</i> may not be related to each other or to those appearing before them. This restriction clearly applies to the three persons sitting together as the <i>Bet Din</i> for <i>ḥalizah</i>. But does it apply to the two non-participating members who are co-opted solely for purposes of publicization? This issue is the subject of controversy among early authorities. Ritva, cited by <i>Nemukei Yosef, Yevamot</i> 101a, maintains that restrictions governing qualifications of members of a <i>Bet Din</i> do not apply to these additional two members. <i>Nemukei Yosef</i> further infers from the phraseology employed by Rambam, <i>Hilkhot Yivum ve-Halizah</i> 4:6, that the latter disagrees and rules that all five should be required to satisfy the identical requirements; <i>Tur Shulḥan Arukh, Even ha-Ezer</i> 169, and Rema, <i>Even ha-Ezer</i> 169:3 espouse the position of Rambam. 
  The analysis of this controversy presented by <i>Bet Shmu'el, Even ha-Ezer</i> 169:4, is quite instructive. <i>Bet Shmu'el</i> notes that <i>Shulḥan Arukh</i> and Rema record divergent practices regarding seating arrangements for the additional two members: <i>Shulḥan Arukh</i> 169, <i>Seder Halizah</i>, sec. 12, records the earlier practice which provides for the two co-opted members to be seated opposite the first three; Rema announces the modified practice of adjacent seating. 
  <i>Bet Shmu'el</i> proceeds to explain that when the additional two members sit opposite the <i>Bet Din</i> it is apparent to all that the co-opted individuals are in fact not members of the bench; hence the authorities who propose opposite seating for the co-opted participants would find no reason for them to meet the qualifications established for fullfledged participants. However, explains <i>Bet Shmu'el</i>, an onlooker finding a seating arrangement such as that described by Rema might well be unable to discern the essential distinction between the two groups. Accordingly, were unqualified persons permitted to occupy the two additional seats on the five-man panel, the uninformed bystander might conclude that the same relaxation of requirements applies to all members of the <i>Bet Din</i>. In order to prevent such error, concludes <i>Bet Shmu'el</i>, even the two non-participating members of the <i>Bet Din</i> must meet the requirements for participatory members of the <i>Bet Din</i>. Accordingly, declares <i>Bet Shmu'el</i>, those authorities whose practice did not require separate seating required that all five participants be fully qualified. Thus Rema, for example, adopts an entirely consistent position with regard to both matters. 
  It is thus evident that all who are perceived by the public as members of a <i>Bet Din</i> must be qualified for service on that body even though, in actuality, they are not members of the <i>Bet Din</i>. Surely, the same principle applies to a <i>Bet Din</i> which sits for purposes of accepting converts to Judaism. Halakhah forbids even the appearance of participation in such a judicial body by any person not fully qualified for actual participation. 
  Participation of non-Orthodox clergymen in such bodies even as non-participatory <i>"shtume dayyanim"</i> is cause for even more serious concern since it serves to legitimize the credentials of such participants and of the ideologies they represent. The considerations giving rise to opposition to joint participation in umbrella bodies such as the Synagogue Council of America and the New York Board of Rabbis certainly apply with even greater cogency and force to establishment of a common <i>Bet Din</i> for purposes of acceptance of converts. 
  There is nothing in this position which should be a cause for animus directed against the Orthodox rabbinate. The Orthodox posture on this matter is based upon objective criteria of Jewish law and in no way reflects political, partisan, or personal considerations. Those who differ ideologically may disagree, and even deplore, this position; but intellectual honesty should compel them to recognize that it is a sincerely held view which is the product of a firm commitment to Halakhah in all its guises. 
  Nevertheless, a solution does exist. The objection is based upon implicit State recognition of the validity of such conversions, not upon conferral of citizenship <i>per se</i>. since no one has ever argued that non-Jews should not be granted citizenship by the State of Israel, there could hardly be an objection to bestowing citizenship upon a person who remains a gentile because of an invalid conversion procedure. The solution is as obvious as it is simple: restrict the Law of Return to naturally-born Jews and allow converts to apply for naturalization in the usual manner. Non-Jews affirming loyalty to the State are granted naturalization as a matter of course at the discretion of the Minister of the Interior in accordance with section 5 of the Nationality Law of 5712 (1952).7<i class="footnote"><i>Sefer ha-Ḥukkim</i>, no. 95, p. 146.</i> Surely, no one will object if State officials, without in any way passing on matters of Halakhah, use objective judgment in considering even technically invalid conversion as evidence of an applicant's sincere desire to identify with the aspirations and common destiny of the citizens of the State of Israel.8<i class="footnote">There is even a biblical precedent for treating naturally-born Jews and proselytes differently in terms of their relationship to <i>Ereẓ Yisra’el:</i> A convert has no claim to <i>yerushat ha-areẓ</i>. Similarly, it is not at all anomalous to accept the claim of a Jew to citizenship automatically but to subject the bona fides of a convert to at least cursory scrutiny via the naturalization process.</i> It must be remembered that the present law provides that economic and social benefits associated with citizenship are automatically conferred upon even non-Jewish spouses and children of Jews claiming citizenship under the Law of Return as amended on 2 Adar II 5730.9<i class="footnote"><i>Sefer ha-Ḥukkim</i>, no. 586, p. 34.</i> The relevant section states:
  The rights of a Jew under this Law and the rights of an <i>oleh</i> under the Nationality Law, (5712-1952), as well as the rights of an <i>oleh</i> under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion. 
  No demurrer has been heard with regard to these provisions of the law.
  Unity requires neither legitimization nor acceptance, but it does require tolerance. Tolerance, without which co-existence becomes impossible, at times demands that ideological issues be skirted rather than solved. Removal of the "Who is a Jew?" issue from the political agenda would serve as an ideological victory for no one, but would constitute a definite victory for the cause of unity. 
  Recognition of non-Orthodox clergymen and the question of solemnization of marriages proscribed by Halakhah are problems which do not readily lend themselves to a facile solution. The State of Israel has, in effect, preserved the millet system which granted autonomy to each religious community in matters of marriage and divorce. The Samaritans and the Karaites have been granted recognition as autonomous religious communities. In effect, such autonomy implies recognition that the beliefs espoused by these groups are significantly different from those of Judaism with the result that these groups must be regarded as separate religious faith-communities. Orthodox Judaism cannot recognize other trends as legitimate expressions of Judaism. This, however, does not prevent the State of Israel from extending recognition to such groups as distinct and autonomous faith-communities. If the goal is to secure redress of grievances and civil liberties such a procedure would produce the desired effect. If, however, the goal is recognition of the legitimacy of those trends as different but nevertheless authentic expressions of Judaism, recognition as distinct faith-communities would be counterproductive. 
  Most significantly, a solution of this nature is antithetical to the fostering of unity. The danger of a new Karaite schism born of rejection of matrimonial law, as was the original Karaite schism, is a very real one. Conferment of autonomy in matters of marriage and divorce upon non-Orthodox groups can only hasten the process. The threat to genealogical purity which existed in only an incipient form in the early days of the Reform movement prompted personages such as R. Moses Sofer, <i>Teshuvot Hatam Sofer</i>, VI, no. 89, and, much later, R. Chaim Ozer Grodzinski, <i>Aḥi'ezer, Kovez Iggerot</i>, I, no. 150, to propose a call for such a schism. Orthodox Judaism has made its stand very clear. It is regretfully willing to accept schism rather than enter into ideological compromise. The ball is in the other court. Others must ask themselves: Does there exist any ideologically compelling reason which requires them to destroy Jewish unity? Assuming a negative answer to this query, the sole remaining question to be asked is: Is a measure of denominational pride an unreasonable price to pay for preservation of some vestige of communal unity?
  The Patrilineal Principle: The Crucial Concern
  It is certainly no secret that the resolution adopted by the Reform movement's Central Conference of America Rabbis accepting the principle of patrilineal identity was predicated upon sociological and institutional concerns rather than upon either historical or halakhic considerations. Nevertheless, in the wake of that resolution, there has been considerable effort to provide <i>post factum</i> justification for that principle. In a fundamental sense, the effort is an exercise in futility since even were historical and/or rabbinic sources uncovered which would support that position they would be essentially irrelevant insofar as normative Jewish law is concerned. The rule establishing identity as a Jew on the basis of matrilineal succession is unequivocally established by the Gemara, <i>Kiddushin</i> 68b, and is accepted by all codifiers of Jewish law. It is highly unlikely that in any legal system a basic principle of law based upon precedents dating from antiquity and reaffirmed so frequently and so authoritatively would be reversed by judicial process. 
  There was, to be sure, one talmudic Sage who did, on one occasion, advocate that patrilineal succession be adopted as the norm. But even he reversed his opinion. The following discussion appears in the Palestinian Talmud, <i>Kiddushin</i> 3:12:
  Jacob of the city of Naburaya went to Tyre. They came and asked him, "What [is the law with regard to] circumcising the son of a gentile woman [born of a Jewish father] on the Sabbath?" [Jacob] thought to permit them [to do so] on the basis of this [verse]: "And they declared their pedigrees after their families, by their fathers' houses" (Numbers 1:18). R. Haggi heard [and] said, "Let him come and be flogged." [Jacob] said to [R. Haggi], "On what basis do you flog me?" [R. Haggi said to him, "From this [verse]: 'And now let us make a covenant to put away all the foreign wives and such as are born of them' (Ezra 10:3)." [Jacob] said to [R. Haggi], "And would you flog me on the basis of the [prophetic] tradition?" [R. Haggi] said to him, " '… and let it be done according to the Torah' (Ezra 10:3.)" [Jacob] said to [R. Haggi], "From which law?" [ R. Haggi] said to him, "From that which R. Yoḥanan declared in the name of R. Simeon ben Yoḥai, 'Thou shalt not make marriage with them…. nor his daughter shalt thou take unto thy son. For he will turn thy son from following Me, that they may serve other gods.' (Deuteronomy 7:3-4)." [Jacob] said to R. Haggi, "Flog me with your lashes for that is better than death."
  Rabbinic exegesis regards the phrase "For he will turn thy son from following Me" as descriptive rather than predictive. The verse serves to establish a legal principle rather than as a biblical prognostication. The child of a Jewish male born of the daughter of a gentile is <i>ipso facto</i> turned from "following Me" because his status is that of a gentile who is not obliged to serve God by observing the commandments of the Torah. This interpretation is not simply an Oral Law tradition recorded by the Sages of the Talmud; it was known to, and accepted by, Ezra. In demanding that children of such unions be excluded from the Jewish faith-community Ezra declared, "And let it be done according to the Torah." Clearly, Ezra recognized the principle of matrilineal identity as being firmly rooted in the verses of the Pentateuch. It is noteworthy that when this was pointed out to Jacob of Naburaya he candidly conceded the argument and expressed relief at being preserved from causing others to accept an errant view and to commit the serious transgression involved in the circumcision of a gentile child on the Sabbath. A similar narrative, identical in all salient points, is found in <i>Midrash Rabbah</i>, Numbers 19:3. 
  The doctrine of matrilineal succession and the exclusion of the principle of patrilineal identity as a sufficient criterion of Jewish identity is Sinaitic in origin. Whether or not, historically, a different principle pertained prior to the Sinaitic covenant is entirely irrelevant. Insofar as the community of Israel is concerned, innumerable provisions of the Noachide Code which were binding upon all people prior to Sinai were supplanted by the Sinaitic covenant. With regard to the giving of the Torah at Mount Sinai, Scripture declares, "This day thou art become a people unto the Lord thy God" (Deuteronomy 27:9). Prior to Sinai there existed no community of Israel. Even as the concept of the peoplehood of Israel and the sanctity of Israel date from Sinai, so also are the criteria of membership in the community of Israel prescribed by the covenant entered into at Sinai. 
  The resolution adopted by the CCAR contains a further provision which has a far stronger basis in Jewish law. The resolution grants recognition as a Jew to the progeny of an intermarriage only if the child is reared as a member of the Jewish faith. There is some precedent for the position that even the child of a Jewish mother and a gentile father is regarded as a Jew only if the child conducts himself as a Jew.
  From the purely scholarly perspective, it is intriguing to note that a number of halakhic 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 in which 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, according to this view, 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 (Maharshal), in his commentary on <i>Yevamot</i> 16b. A view similar to that advanced by Maharshal is formulated in greater detail by Rit Algazi in his commentary on <i>Bekhorot</i> 47a. 
  Maharsha, <i>Yevamot</i> 16b, sharply contests Maharshal's 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. Indeed, 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 Shik, Even ha-Ezer</i>, no. 20; <i>Naḥal Eshkol</i>, III, p. 133; as well as <i>Dovev Mesharim</i>, I, no. 7, clearly and definitively rule that the child of a Jewish mother and a non-Jewish father is, in all instances, deemed to be a Jew.10<i class="footnote">For a fuller discussion of this question, see <i>Contemporary Halakhic Problems</i>, II, 103-107.</i>
  Adoption by the Reform movement of the position that a child of a mixed marriage is to be considered a member of the Jewish faith-community only if reared as a Jew is not only incorrect as a normative principle of Jewish law but, when coupled with adoption of the principle of patrilineal succession, this innovation raises serious questions with regard to why it is at all necessary for that movement to adopt a policy of patrilineal succession and with regard to what is, indeed, the underlying motivation. 
  The Reform movement has long since renounced <i>milah</i> and <i>tevilah</i> as the <i>sine qua non</i> of conversion and, in essence, asks for little more than a declaration affirming a desire to become a member of the community of Israel. Since, from the Reform perspective, a child born of two gentile parents and a child born of a Jewish father and a non-Jewish mother are both required to affirm their Jewishness in a positive matter and need do nothing more to be accepted as Jews, why, then, the need for a principle of patrilineal succession? Since, in both cases, such affirmation is required, what practical difference is there whether the person is accorded status as a Jew by virtue of birth or by virtue of conversion?
  Precisely the same question may be raised with regard to the vehement disapproval which adoption of this policy has aroused in Orthodox circles. Heretofore, within the Reform movement, children of a Jewish father and a non-Jewish mother were routinely accepted as converts to Judaism. Those conversions, however, were never regarded by adherents of normative Judaism as valid in the eyes of Jewish law. 
  As has been stated earlier,11<i class="footnote"><i>Supra,</i> p. 90.</i> halakhic Judaism can never sanction conversion in the absence of either ideological sincerity or of unreserved acceptance of the "yoke of the commandments." Thus, no candidate may be accepted for conversion in the absence of a firm commitment to <i>shemirat ha-mizvot</i>. Sincerity of purpose in the face of obvious ulterior motivation can be determined only by a competent <i>Bet Din</i> on a case-by-case basis. Moreover, Halakhah recognizes the validity of a conversion only if performed in the presence of a qualified <i>Bet Din</i>. The requirements for serving on such a <i>Bet Din</i> are carefully spelled out by Halakhah. Conversion, even when accompanied by circumcision, immersion in a <i>mikveh</i> and acceptance of the "yoke of the commandments," is null and void unless performed in the presence of a qualified <i>Bet Din</i>. 
  One need not necessarily be an ordained rabbi in order to serve on a <i>Bet Din</i> for purposes of accepting a convert, but one must be committed to the acceptance of Torah—both the Written and Oral Law<i>—in its entirety</i>. One who refuses to accept the divinity and binding authority of even the most minor detail of Halakhah is, <i>ipso facto</i>, disqualified. It has long been the stated opinion of halakhic authorities that ideological adherents of Reform and Conservatism fall into this category.12<i class="footnote">See <i>supra,</i> p. 91.</i>
  The selfsame persons now claiming recognition as Jews on the basis of patrilineal succession were heretofore routinely accepted as converts by the Reform movement. The claim of such individuals to be identified as Jews on the basis of conversion had no greater validity in the eyes of normative Judaism than does their claim to Jewishness by virtue of patrilineal succession. Why, then, the current furor?
  To be sure, the number of individuals who will be regarded as Jews in some circles by virtue of the patrilineal principle is bound to rise at least marginally since not all such persons would otherwise undergo Reform conversion. Certainly, recognition as Jews accorded by the Reform movement to individuals who are regarded by normative Judaism as non-Jews will create difficulties in relation to future possible marriages between adherents of normative Judaism and the progeny of Reform Jews. But such concerns already exist. Indeed, it is the concern that all persons accepted as Jews be able freely to enter into marriage with one another—and not unseemly institutional jealousies—which is the basis of the demand that only conversions which are valid in the eyes of Halakhah be accepted by the State of Israel for purposes of the Law of Return. 
  Certainly no one wishes a schism to occur between adherents of normative Judaism and adherents of the Reform movement similar to that which occurred in days gone by between the Karaites and the Rabbanites. However, the schism occurred, not because of invalid conversions performed by the Karaite community, but because of their disregard for essential provisions of Jewish law in the execution of a <i>get</i>. There is no remedy which would permit the progeny of a woman who has contracted a second marriage without benefit of a valid <i>get</i> to marry Jews of legitimate birth. The Reform movement has similarly rejected the requirement for a religious divorce as a necessary condition of remarriage and, for that reason, the spectre of a modern-day schism has, indeed, arisen. As noted earlier, the threat to genealogical purity which existed only in an incipient form in the early days of the Reform movement prompted R. Moses Sofer and, much later, R. Chaim Ozer Grodzinski to propose a call for such a schism.13<i class="footnote"><i>Supra,</i> p. 96.</i>
  Such a schism has not occurred—but for reasons which can give heart to no one. There have, indeed, been cases involving children of such marriages who have contemplated marriage with observant Jews only to discover that they were born of an adulterous union and, hence, their contemplated marriages are precluded by Jewish law. With the growing number of <i>ba'alei teshuvah</i> and children drawn from all sectors of the Jewish community enrolled in Day Schools and <i>yeshivot</i>, the incidence of such heartrending tragedies is increasing. But a formal schism has been averted only because it is still possible to investigate the genealogy of descendants of Reform Jews in order to determine that there exists no barrier to marriage. Unfortunately, there are very few Reform Jews who identify themselves as Jews beyond the third or, perhaps, the fourth generation. The Karaite community maintained its own identity and observances over a period of centuries so that, with the passing of time, genealogical investigation became impossible. Unfortunately, the ravages of assimilation have thus far made that issue academic insofar as the Reform community is concerned. Little comfort may be found in the fact that a schism has been avoided only because of the unhappy phenomenon of assimilation. 
  If abolition of the <i>get</i> did not lead to a schism, <i>a fortiori</i>, the issue of patrilineal identity should not lead to such sorrowful consequences. Certainly, invalid conversions have not led to a schism. The remedy of undergoing a valid conversion remains readily available. 
  The crucial concern in the present controversy is of a different nature entirely. Adoption of the policy of patrilineal succession, coupled with formal affirmation of Jewish identity, is manifestly unnecessary for a movement which accepts conversion on the basis of such a declaration alone. The Reform movement can persist in accepting a policy of patrilineal succession as a sufficient criterion of Jewish identity only if such a policy is born of a determination to flout two thousand years of Jewish tradition. That is tantamount to renunciation of the already tenuous ties which bind Reform Jews to other members of the Jewish faith-community. Adoption of the patrilineal principle is an eloquent statement of disassociation. In light of the existing policy regarding conversion, adoption of the principle of patrilineal identity may well be only a matter of form. But, at times, form becomes substance. It is precisely this flagrant disregard of the elemental formal ties which unite all Jews which has aroused the concern of Jews who cherish their separated brethren and recoil at the prospect of further alienation and divisiveness. 
  Sectors of our community so separated in matters of theology and observance have heretofore remained united in terms of basic identity and identification. That is a precious heritage which no observant Jew seeks to put asunder. But, as Ezra proclaimed centuries ago, if a common Jewish identity is to continue to be acknowledged by all, <i>"ve-kha-Torah ye'aseh,"</i> it must, of necessity, be on the basis of the identity demanded by the Torah itself. 
  Permitting Use of a Mikveh for Non-Orthodox Conversions
  With the possible exception of a small number of <i>mikva'ot</i> housed in Jewish Community Centers, virtually all—if not all—<i>mikva'ot</i> in this country were constructed and continue to be maintained under Orthodox auspices. Since other facilities are seldom available, Conservative clergymen and the few Reform clergymen who demand immersion in a <i>mikveh</i> as part of their conversion rituals must perforce utilize those <i>mikva'ot</i>. Many years ago, the late Rabbi Moses Feinstein was asked whether it is proper for Orthodox rabbis and communal leaders to permit the use of their facilities for this purpose. In a brief response published in <i>Iggerot Mosheh, Yoreh De'ah</i>, II, no. 125, Rabbi Feinstein draws a distinction between officiants who have contributed financially (presumably, either personally or through their Temples) to the construction of the <i>mikva'ot</i> they are desirous of using and those who have not. Rabbi Feinstein counsels that non-Orthodox clergymen who have not participated financially in the building of the <i>mikveh</i> should not be permitted the use of such facilities for purposes of conversions that are invalid in the eyes of Jewish law. Regarding those who have provided material support for the construction of a <i>mikveh</i>, Rabbi Feinstein writes, "… it is impossible to prevent them [from utilizing the <i>mikveh</i>] and the administrators of the <i>mikveh</i> have no responsibility for [the] acts [of such persons]." Rabbi Feinstein advises that, in order to avoid friction and to dispell ill will, it be explained that the <i>mikveh</i> is intended for, and made available as a community service to women, without exception, for post-menstrual immersion, but that the <i>mikveh</i> is available for other purposes only to those who have participated in its construction. A second responsum by Rabbi Feinstein confirming the basic nature of this ruling is included in the last volume of <i>Iggerot Mosheh, Hoshen Mishpat</i>, II, no. 24.14<i class="footnote">In the latter responsum, written in the form of a brief letter addressed to the administrators of a <i>mikveh</i> erected, at least in part, with funds contributed by members of a Conservative congregation, Rabbi Feinstein advises against an attempt to forbid use of the <i>mikveh</i> in conjunction with conversion ceremonies performed under non-Orthodox auspices. Rabbi Feinstein deems such an attempt to be inadvisable and notes two considerations: (1) In the general area in which the <i>mikveh</i> was located other facilities would have been made available for such purposes. Hence, maintains Rabbi Feinstein, permitting candidates for non-Orthodox to utilize the <i>mikveh</i> involves no transgression of “placing a stumbling-block before the blind.” (2) Denying them the use of existing facilities might prompt the Conservative congregation to construct its own <i>mikveh.</i> In all likelihood such a <i>mikveh</i> would not satisfy the requirements of Jewish law and would be used by women for purposes of their monthly immersion. The net result would be an increase in inadvertent transgressions. Nevertheless, Rabbi Feinstein, by means of a reference incorporating <i>Iggerot Mosheh, Yoreh De‘ah,</i> II, no. 125, reaffirms his earlier position and thereby reiterates that the <i>mikveh</i> facilities be made available for conversions performed under Conservative auspices only when funds for construction of the <i>mikveh</i> have been derived from such sources.The point made by Rabbi Feinstein regarding the absence of the prohibition concerning “placing a stumbling-block before the blind” in situations in which others are quite prepared to facilitate the same transgression is a matter of controversy among latter-day authorities. See <i>infra,</i> note 16 and accompanying text. Rabbi Feinstein’s concern regarding the ability of the Conservative congregation to construct its own <i>mikveh</i> does not appear to be at all germane. Such construction would certainly require time and, if other facilities were not made available, would occasion a considerable delay in carrying out the conversion ceremony. Assuming that the “stumbling-block” in question is facilitating what is, in effect, an intermarriage and illicit cohabitation consequent thereupon, it follows that facilitating early conversion <i>ipso facto</i> facilitates additional acts of forbidden intercourse and hence constitutes the placing of a “stumbling-block before the blind.” Rabbi Feinstein’s point regarding the possibility that construction of a <i>mikveh</i> by a Conservative congregation might also lead to its use by women for their monthly immersion is cogent only upon an assumption that no transgression of “placing a stumbling-block before the blind” is attendant upon making the facility available for an invalid conversion. Moreover, the concern does not appear to be rooted in fact: Observant women would no more rely upon Conservative supervision of a <i>mikveh</i> than they would rely upon Conservative supervision of food products used in their kitchens. Regrettably, the number of Conservative women who avail themselves of a <i>mikveh</i> on a regular basis is quite small.</i>
  Although, to this writer's knowledge, no article or halakhic responsum taking issue with Rabbi Feinstein's position has appeared either in the periodical literature or in scholarly works, the <i>de facto</i> policy adopted in many communities has been at variance with this ruling. In at least one city the matter recently became an issue of contention within the Orthodox community. A number of rabbinic authorities were approached for a definitive ruling with regard to this question. The response of Rabbi Nathan Gestetner of Bnei Brak appeared in <i>Am ha-Torah</i>, second series, no. 11 (5746), and that of Rabbi Aaron Soloveichik was published in the Elul 5746 issue of <i>Ha-Darom</i>. 
  Despite impressions in many circles to the contrary, the concerns underlying this question—as well as those underlying the analogous controversial "Who is a Jew?" issue—are not predicated upon institutional or denominational rivalries. Totally absent from the discussions of rabbinic scholars who have addressed this issue is any consideration of preserving a monopoly of power or privilege. Nor are the concerns expressed intended in any way to diminish the fraternal bonds which unite all Jews and which render every Jew responsible for the spiritual as well as the material welfare of each of his fellow Jews. 
  The specific halakhic problem arises from the fact that conversions performed under non-Orthodox auspices are <i>ipso facto</i> invalid for two reasons: (1) a proper "acceptance of the yoke of the commandments" is lacking; and (2) non-Orthodox clergymen are disqualified from serving as members of the <i>Bet Din</i> required for the acceptance of proselytes. 
  The earliest discussion of the question of "acceptance of the yoke of the commandments" in this context is that of R. Chaim Ozer Grodzinski, <i>Teshuvot Aḥi'ezer</i>, III, no. 26, dated Winter, 1912. The Gemara, <i>Bekhorot</i> 30b, and the <i>Mekhilta, Parshat Kedoshim</i> 19:34, stipulate that a prospective convert must accept all commandments without reservation or exclusion. Acceptance of the commandments "with the exception of one thing" renders the conversion null and void. <i>Aḥi'ezer</i> asserts that this condition is not met in conversions supervised by non-Orthodox officiants. <i>Aḥi'ezer</i> reasons that since their knowledge of the commandments is obtained "from the interpretation of reformers in accordance with their false ideologies" the candidates' acceptance of <i>mizvot</i> is deficient and "is comparable to [acceptance] 'with the exception of one thing.' " As early as 1929, and reiterated in 1950, Rabbi Feinstein, <i>Iggerot Mosheh, Yoreh De'ah</i>, I, nos. 157 and 160, declared that in his opinion, even a conversion carried out before an Orthodox <i>Bet Din</i> is a nullity when it is evident that the candidate for conversion is insincere in acceptance of <i>mizvot</i> and such lack of sincerity is evidenced by subsequent non-observance of the commandments. Conservative conversions, rules Rabbi Feinstein, are <i>a fortiori</i> invalid because (a) no attempt is made to examine the candidate's seriousness of intent with regard to scrupulous observance of the entire corpus of <i>mizvot</i>, and (b) the members of the <i>Bet Din</i> themselves "do not observe many of the laws of the Torah and will not demand of converts that [the converts] observe more than they themselves observe."
  Even more fundamental is the question of the qualification of non-Orthodox clergymen to serve as members of a <i>Bet Din</i>. Failure to accept the divinity and the binding authority of the Oral as well as of the Written Law in and of itself constitutes a disqualification from serving as a member of a <i>Bet Din</i>, as does the absence of a commitment to be bound by the commandments in their entirety. Such a requirement is not at all surprising. As noted earlier, in most countries a judge cannot sit on the bench without first being sworn to uphold the laws of the land. Jewish law does not require an oath—other than the one sworn by every Jew at Mount Sinai—but it does posit unequivocal acceptance of the teachings of the Torah as a precondition for holding judicial office. In a host of responsa spanning many decades Rabbi Feinstein has repeatedly and unequivocally declared that non-Orthodox clergymen do not meet this requirement.15<i class="footnote">See above, note 6.</i> In a number of these responsa Rabbi Feinstein makes it absolutely clear that Conservative as well as Reform clergymen are disqualified on these grounds. Thus, even if the requirements of Halakhah were to be scrupulously followed in performance of the formalities of the conversion ritual itself, the conversion is void by virture of the disqualification of the officiants. Rabbis Feinstein, Soloveichik and Gestetner are unanimous and firm in their opinion that candidates converted under Reform or Conservative auspices remain non-Jews in the eyes of Jewish law. 
  In a separate responsum addressing another matter, appearing in <i>Ha-Pardes</i>, Heshvan 5747, Rabbi Aaron Soloveichik argues that even a Conservative clergyman who is not only scrupulously observant but also "believes with absolute faith in the Written Law and the Oral Law … and is highly knowledgeable, proficient in Talmud and Codes" is disqualified from serving on a <i>Bet Din</i>. The Gemara, <i>Sanhedrin</i> 26a, relates that Resh Lakish sought to disqualify R. Hiyya bar Zarnuki and R. Shimon ben Yehozadak from serving on a <i>Bet Din</i> convened to add an intercalary month to the year. Resh Lakish criticized a number of individuals whom he observed performing acts which, ostensibly, were violations of restrictions pertaining to the observance of the sabbatical year. R. Hiyya bar Zarnuki and R. Shimon ben Yehotzadak attempted to defend the actions of those persons. Thereupon Resh Lakish sought to disqualify those scholars from serving on the <i>Bet Din</i> on the grounds that, in defending sinners, they had entered into a <i>"kesher resha'im,"</i> a confederacy of transgressors. Rabbi Soloveichik opines that the Gemara herein posits an otherwise unidentified disqualification from holding judicial office, viz., defense of, and hence identification with, transgressors. Accordingly, concludes Rabbi Soloveichik, even assuming the Conservative clergyman in question to be a person of exemplary faith and piety, he is disqualified on the grounds that his identification with the Conservative movement and its ideology constitutes participation in a <i>"kesher resha'im."</i> However, since none of the codifiers of the Halakhah cite identification with transgressors <i>per se</i> as a disqualification for holding judicial office, Rabbi Soloveichik's interpretation must be regarded as novel. Resh Lakish may well be understood as contending that one who defends a violator of the laws of the sabbatical year is himself suspect with regard to such matters and is disqualified from serving as a member of a <i>Bet Din</i> because he himself is suspected of having committed similar infractions. Insofar as Conservative clergymen are concerned, the point is entirely academic since, as stated by Rabbi Feinstein, <i>Iggerot Mosheh, Yoreh De'ah</i>, I, no. 160, "Whosoever bears the … appellation 'Conservative' must be presumed to be wantonly unconcerned with regard to many prohibitions and to deny many principles [of faith]" (<i>be-ḥezkat mufkar le-harbeh issurim u-le-kefirah be-harbeh ikkarim)</i>. Rabbi Gestetner echoes those sentiments in writing "… for if they were believers and fulfilled all the commandments they would then not adhere to the aforementioned sects, but to the fearers of God. Their very membership in the aforementioned sects indicates that they have excluded themselves from the category of God-fearers and that they do not fulfill all the commandments of God and do not believe in all the commandments of the Torah in accordance with the manner in which it has been transmitted to us by the Sages of blessed memory. Accordingly, they are disqualified from giving testimony and judging."
  Rabbi Gestetner argues that, since the conversions in question are null and void, any person assisting in such a conversion ceremony transgresses the prohibition "and before a blind man you shall not place a stumbling-block" (Leviticus 19:14). It might well be assumed that the "stumbling-block" in the situation under discussion lies in the fact that the non-Jew will be inadvertently accepted by the community at large as a Jew for all halakhic purposes, including eligibility to marry a person of Jewish birth. According to such an analysis, it is the members of the community at large who are "blind" and who may stumble. Rabbi Gestetner, however, argues that the "stumbling" is of a nature which is both immediate and certain, viz., making the <i>mikveh</i> available for the act of immersion constitutes a stumbling-block placed before the officiants at the conversion. Rambam, <i>Guide of the Perplexed</i>, Book III, chapter 41, states that every transgression which assumes the form of a denial of the veracity of the Torah constitutes a transgression of a prohibition couched in the words "the Lord does he blaspheme" (Numbers 15:30). Acceptance of converts without proper commitment on their part to observance of the commandments, argues Rabbi Gestetner, constitutes denial of one of the principles of the Oral Law. Since immersion of such a candidate by the <i>Bet Din</i> is <i>ipso facto</i> a denial of a principle of the Oral Law involving a transgression of "the Lord does he blaspheme" any assistance rendered in performing such an act, rules Rabbi Gestetner, constitutes the placing of a stumbling-block before the blind. 
  The more obvious "stumbling-block" in such situations lies, of course, in the fact that an invalid conversion ceremony will in all likelihood lead to intermarriage. Rabbi Soloveichik presents the counterargument that no infraction of this prohibition is incurred in circumstances in which the untoward result will occur in any event, i.e., in situations in which there are others who are prepared to proffer the requisite assistance. Although this is indeed the view of R. Abraham Samuel Benjamin Sofer, <i>Teshuvot, Ketav Sofer, Yoreh De'ah</i>, no. 83,16<i class="footnote">See also R. Shlomoh Kluger, <i>Teshuvot Tuv Ta‘am va-Da‘at, Mahadura Telita’a</i>, part 2, no. 32.</i> an earlier authority, <i>Mishneh le-Melekh, Hilkhot Malveh ve-Loveh</i> 4:2, demonstrates that when such aid can be provided only by a Jew, the Jew who in fact provides the assistance incurs the transgression. <i>Mishneh le-Melekh</i>'s position finds support in the comments of <i>Tosafot, Hagigah</i> 13a, and <i>Tosafot, Baba Mezi'a</i> 75b. In point of fact, this consideration is not always germane with regard to making a <i>mikveh</i> available for invalid conversions since in many locales no other facility is available. 
  Another mitigating consideration is that the transgression of placing a stumbling-block is incurred only when the "stumbling-block" provided constitutes a proximate cause of the ensuing transgression. When, however, a supervening event is required in order to commit the transgression (<i>lifnei de-lifnei</i>) no biblical infraction is incurred in the placement of the stumbling-block. Rabbi Soloveichik, however, cites the comments of <i>Tosefot Rid, Avodah Zarah</i> 14a, which are significant with regard to this point. The Gemara, <i>Avodah Zarah</i> 14a, declares that incense used in idol worship may be sold to a non-Jew for purposes of resale. No infraction of the prohibition against "placing a stumbling-block before a blind man" is incurred in the original sale since the incense will not be used by the immediate purchaser. Yet, the Gemara, <i>Niddah</i> 61b, declares, that it is forbidden, under all circumstances, to sell a garment containing a concealed mixture of linen and wool to a Jew. In light of the ruling formulated in <i>Avodah Zarah</i> 14a, it would be anticipated that selling a garment containing a mixture of wool and linen for purposes of resale should not be regarded as involving a transgression of "placing a stumbling-block before the blind." <i>Tosefot Rid</i> distinguishes between the two cases by pointing to the fact that the sale of incense involves no misrepresentation by the first purchaser to the second, whereas a wool garment containing a concealed linen thread is not identified to the second purchaser as a garment which may not be donned. Rabbi Soloveichik cogently explains this distinction as predicated upon the bifurcated nature of the prohibition against placing a stumbling-block before the blind. As clearly stated by Rambam, <i>Hilkhot Rozeaḥ</i> 12:14-15, the prohibition enjoins two distinct forms of conduct: (1) offering ill-advised counsel; and (2) facilitating a transgression. Only with regard to the latter is a distinction drawn between <i>lifnei</i> and <i>lifnei de-lifnei</i>, i.e., only with regard to facilitating a transgression is the infraction limited to rendering assistance with regard to the proximate cause of the transgression. Offering infelicitous advice is forbidden even when the advice is only remotely associated with the untoward outcome. Merely providing the opportunity for transgression to a person who recognizes the forbidden nature of the deed does not constitute encouragement. When the illicit nature of the act is known, providing the opportunity is not construed as an attempt to overcome constraint. However, according a person the opportunity for committing an inadvertent transgression is tantamount to advising him to commit the transgression. Since the person is unaware of the forbidden nature of the contemplated act the opportunity serves as encouragement. Hence, merely providing the opportunity constitutes the placing of a "stumbling-block" of the genre of offering infelicitous counsel and is biblically forbidden under all circumstances. Similarly, R. Betzalel of Orlow, <i>Teshuvot Rabbenu Bezalel</i>, no. 3, rules that although no biblical transgression is incurred in proffering a glass of wine to a Nazarite when both parties are positioned on the same bank of a river (and the situation is such that the Nazarite could have obtained the wine without assistance), nevertheless, an infraction is incurred if the Nazarite is unaware of the fact that the cup contains wine. Offering the cup is tantamount to encouraging consumption of its contents and hence constitutes a stumbling-block in the form of ill-advised counsel rather than simply a stumbling-block in the form of assisting in a transgression. Thus, assistance in performance of an invalid conversion constitutes "placing a stumbling-block" in the sense of offering unsound counsel. Since the candidate for conversion is frequently unaware of the inefficacy of the procedure, any assistance offered constitutes "ill-advised counsel" and is forbidden. 
  Moreover, points out Rabbi Soloveichik, <i>genevat da'at</i>, i.e., misleading an individual, even a non-Jew, is a violation of the prohibition "Thou shalt not steal" (Exodus 20:13). Accordingly, assistance in misleading a gullible individual constitutes the placing of a stumbling-block before the perpetrator of the fraud. Furthermore, <i>Targum Yonatan</i>, Leviticus 20:3, regards all such assistance as intrinsically proscribed by the prohibition "Thou shall not steal." According to <i>Targum Yonatan</i> the prohibition encompasses, not only the act of theft <i>per se</i>, but also any action from which theft results. 
  On the basis of a somewhat different line of argument, Rabbi Gestetner similarly rules that it is forbidden to permit use of a <i>mikveh</i> for invalid conversions because of the likelihood of subsequent infractions of Jewish law. The Gemara, <i>Gittin</i> 61a, permits a woman to lend utensils used in the preparation of flour to a neighbor even though the neighbor is suspect with regard to observance of the restrictions of the sabbatical year. The stated reason is "because of the ways of peace" (<i>mipnei darkei shalom</i>), i.e., in order not to disrupt harmonious relationships. Despite consideration of "the ways of peace" the Gemara prohibits the same woman from personally assisting in the actual preparation of the flour. Rabbenu Shimshon and <i>Tosefot Yom Tov</i>, in their respective commentaries on the Mishnah, <i>Shevi'it</i> 5:9, demonstrate that the lending of utensils to suspected transgressors is permitted "because of the ways of peace" only when there is at least some possibility that they are to be utilized for a legitimate purpose. Similarly, <i>Magen Avraham, Oraḥ Hayyim</i> 346:4, forbids the lending of implements which may be used for activities forbidden on the Sabbath to a person suspected of being a Sabbath violator unless the implements are also commonly used for permissible activities. When considerations of <i>darkei shalom</i> pertain, <i>Magen Avraham</i> permits the lending of such implements even when they are not commonly used for permissible activities, provided, however, that there is at least the possibility that the implements will be put to a legitimate use. 
  In situations in which such a loan is forbidden the prohibition is predicated upon the consideration that "one dare not strengthen the hands of transgressors" (<i>ein maḥazikin yedei ovrei aveirah</i>). The prohibition against performing acts included in this category is generally regarded as rabbinic in nature. The prohibition is designed to proscribe certain activities which are excluded from the ambit of the biblical prohibition against "placing a stumbling-block before the blind" by virtue of the absence of an intrinsic cause-and-effect relationship between the assistance rendered and the resultant transgression. Rabbi Gestetner, however, cites the statement of Rambam, <i>Commentary on the Mishnah, Terumot</i> 6:3, to the effect that the prohibition against such action is rooted in the biblical admonition, "Do not put your hand with the wicked" (Exodus 23:1). 
  Granting permission for the use of a <i>mikveh</i> when such use will ultimately result in intermarriage, argues Rabbi Gestetner, is entirely analogous to lending utensils for purposes of preparation of forbidden produce or for use on the Sabbath in a proscribed manner. Rabbi Gestetner rules that, since the immersion in question serves no legitimate purpose, facilitating such immersion is forbidden even for considerations of <i>darkei shalom</i>, just as lending utensils for use in association with forbidden activities is prohibited even on grounds of <i>darkei shalom</i> when it is known with certainty that the utensils will not be used for a legitimate purpose. Granting permission for such use, argues Rabbi Gestetner, is forbidden even though immersion in the <i>mikveh</i> is not an intrinsically unlawful act but serves only to facilitate subsequent intermarriage. Assistance in preparing the flour, which is prohibited by the Gemara, <i>Gittin</i> 61a, is also not intrinsically unlawful; it is only the subsequent consumption of the foodstuff under improper conditions which constitutes the infraction. Nevertheless, even acts preparatory to the transgression are forbidden when no legitimate purpose can be ascribed to such acts.17<i class="footnote">Cf., however, <i>Teshuvot Ketav Sofer, Yoreh De‘ah</i>, no. 83, <i>s.v., ve-yesh siyu‘a la-zeh; Teshuvot Bnei Ẓion</i>, no. 15; and <i>Teshuvot Aḥi‘ezer</i>, IV, (Bnei Brak, 5746), no. 5, who maintain that the rabbinic prohibition applies only to assistance rendered at the time of actual transgression. <i>Ketav Sofer</i>, citing Rashi, <i>Gittin</i> 61a, describes assistance in the actual preparation of flour as assistance at the time of transgresssion while <i>Aḥi‘ezer</i> acknowledges the difficulty of explaining that prohibition. The earlier cited ruling of <i>Magen Avraham</i> also appears to contradict that distinction.</i> Of course, if granting permission to use the <i>mikveh</i> constitutes a violation of the biblical prohibition against placing a stumbling-block before the blind because it is tantamount to counseling intermarriage, as Rabbi Soloveichik asserts, considerations of <i>darkei shalom</i> are entirely irrelevant. Such considerations, when applicable, serve to obviate a rabbinic prohibition but are irrelevant insofar as a biblical prohibition is concerned. 
  Rabbi Soloveichik further argues that permitting the use of a <i>mikveh</i> for invalid conversions constitutes the violation of yet other biblical prohibitions. Ramban, in his <i>Commentary on the Bible</i>, Leviticus 19:29 and Deuteronomy 23:18, as well as in his glosses on Rambam's <i>Sefer ha-Mizvot, shoresh</i> 5, and <i>mizvot lo ta'aseh</i>, no. 355, declares that the verse, "There shall not be a prostitute from among the daughters of Israel, nor shall there be a prostitute from among the sons of Israel" (Deuteronomy 23:18), and the verse, "and the land shall not be filled with licentiousness" (Leviticus 19:29), constitute admonitions to the <i>Bet Din</i> forbidding it to allow liaisons between persons who cannot contract a valid marriage. Rabbi Soloveichik asserts that, according to Ramban, the prohibitions are not addressed solely to the members of the <i>Bet Din</i>, but devolve upon any person capable of preventing the acts in question. Hence, any person who facilitates a forbidden liaison of such nature is guilty of violating these two prohibitions. Permitting use of a <i>mikveh</i> for an invalid conversion serves to provide sanction for a conjugal relationship between a Jew and a person who, in reality, is a non-Jew and hence, concludes Rabbi Soloveichik, constitutes a violation of these prohibitions. 
  It appears to this writer that there are two additional considerations which would bar permitting a <i>mikveh</i> to be used for purposes of an invalid conversion:
  (1) The issue in question poses concerns which are identical with those that led to the <i>issur</i> against membership in the Synagogue Council of America and the New York Board of Rabbis promulgated by a group of eleven leading <i>Roshei Yeshivah</i> in 1956. Membership in such organizations, it was contended, confers, or appears to confer, legitimacy upon groups and individuals who misrepresent the teachings of Judaism and implies recognition of the equal validity of sectarian ideologies. Any such recognition or legitimization constitutes a negation of the authenticity of the Sinaitic nature of both the Written Law and Oral Law in their entirety. Even those who fail to adhere to that <i>issur</i> do not dispute the premise that any such conferral of legitimacy is prohibited; their sole contention is that membership in such organizations is not to be construed in such a manner. 
  Granting permission for use of a <i>mikveh</i> for purposes of conversions performed by non-Orthodox clergyman certainly constitutes a more obvious conferral of legitimacy upon the "<i>Bet Din</i>" convened for that purpose than mere admission to membership in a professional or communal organization. Surely, the observer will not assume that religious authorities have consented to the use of their facilities for a procedure that is a mere charade. As Rabbi Soloveichik notes in a different context, the same authorities would assuredly not make <i>mikveh</i> facilities under their control available to non-Jewish groups for religious purposes. Hence the impression conveyed is that full faith and credit is being extended to the acts—and ideology—of a non-Orthodox <i>Bet Din</i>. Granting such legitimacy is, in and of itself, a negation of fundamental principles of Jewish belief. 
  (2) Fees are commonly charged for use of a <i>mikveh</i>. In cases of conversion, the fee is paid by the candidate for conversion or, not infrequently, by the prospective Jewish marriage partner. Certainly, were the <i>mikveh</i> itself to be halakhically defective, acceptance of a fee for its use would constitute fraud. The concerned parties are frequently unaware of the fact that a conversion performed under Conservative auspices will not be recognized by Orthodox Jewry. Were the candidate to be aware of this fact, it is quite likely that he or she would not undergo such a procedure. Hence, although Rabbi Soloveichik dismisses this contention without elaboration, acceptance of a fee for use of the <i>mikveh</i> without informing the concerned parties of the lack of efficacy of the contemplated immersion may, at least in some circumstances, constitute an act of fraud. 
  *For a discussion of whether the presence of unqualified participants in addition to the requisite number of qualified participants renders the actions of the <i>Bet Din</i> null and void (<i>nimza eḥad me-hem karov o pasul</i>), see sources cited by <i>Mishneh le-Melekh, Hilkhot Edut</i> 16:5; <i>Birkei Yosef, Hoshen Mishpat</i> 7:31; <i>Urim ve-Tumim</i> 46:28; <i>Sha'ar Mishpat</i> 7:5; <i>Kezot ha-Hoshen</i> 36:7; <i>Sho'el u-Meshiv, Muhadurah Tinyana</i>, II, no. 84; <i>Margaliyot ha-Yam, Sanhedrin</i> 3a, sec. 15; <i>Yabi'a Omer</i>, II, <i>Hoshen Mishpat</i>, no. 2; <i>Sedei Hemed, Kelalim, ma'arekhet haayin</i>, no. 49; and <i>Encyclopedia Talmudit</i>, XV, 690. Although the participation of a person disqualified from acting as a <i>dayyan</i> may disqualify the entire <i>Bet Din</i>, his presence does not disqualify the entire <i>Bet Din</i> if the qualified members of the <i>Bet Din</i> decline to accept the disqualified individual as a participant. See <i>Pitḥei Teshuvah, Hoshen Mishpat</i> 7:22, and <i>Yabi'a Omer</i>, II, <i>Hoshen Mishpat</i>, no. 2. 
  
  Chapter V Women
  
  <i>"Thus shalt thou say to the house of Jacob"—These are the women. … Why were women [addressed] first? Because they are alacritous in the fulfillment of commandments</i>. 
  SHEMOT RABBAH 28:2
  The feminist movement has fostered significant sociological and attitudinal changes. It is not at all surprising that women, in examining their role in every area of life, have also turned their attention to their obligations and prerogatives within Jewish tradition. The frustration and denial suffered by women within society at large in the broad spectrum of human endeavor has engendered concerted efforts to break loose from stereotypical roles and to seek parity in all matters. Little wonder, then, that similar demands are advanced with regard to religious observance and practice as well. 
  This phenomenon has given rise to a host of questions raised by women seeking various avenues of religious expression heretofore not associated in Jewish tradition with the role of women. Rabbi Moses Feinstein, <i>Iggerot Mosheh, Oraḥ Hayyim</i>, IV, no. 49, has astutely noted that, at times, the specific question raised is not at all the real issue. The halakhic factors auguring for an affirmative or for a negative response fade into insignificance when the question itself belies an underlying rejection of the received traditions and teachings of Judaism. 
  Fortunately, in many instances, this is not the case. For many women, the feminist movement has spawned reflection rather than rejection. Religious introspection and self-analysis with a view to seeking higher levels of spiritual awareness and enhanced observance are to be applauded. Thus, the newly awakened assertiveness of women in our society may well become a positive tool leading to their increased involvement in the religious life of the Jewish community. It is imperative that this singular opportunity be seized and be utilized to maximum advantage in fostering the spiritual enrichment of all members of the community. 
  Judaism does not espouse a unisex view of social roles and endeavors; rather, it assigns males and females differing obligations and diverse modes of religious expression. But, by no means, does such role differentiation reflect denigration of the spiritual capacities and aspirations of the female. Halakhah makes demands of women, just as it does of men. The demands may not be identical but they are certainly not inferior in significance. Problems concerning the obligations of women were always given as much attention by rabbinic scholars as those concerning religious practices associated with males. The charge that male decisors do not regard the questions posed by female interlocutors with sufficient seriousness is a canard unworthy of those who give expression to it. 
  The Torah and its Halakhah are objective. As such, there cannot be a male versus a female perspective. Halakhic scholars are duty-bound to examine every sincerely posed question on its merits. Rabbinic leaders are duty-bound to encourage maximal spiritual development on the part of every Jew and of every Jewess. But, at the same time, it remains their duty to advise and to counsel, to admonish and to exhort, and to serve as mentors in guiding religious yearnings in channels fully consonant with Jewish law and tradition. 
  Women's Minyanim
  In the wake of the feminist movement and the desire of women to seek more fulfilling roles in all aspects of community life the Jewish community has experienced a proliferation of women's prayer groups. Only women are invited to participate and women themselves conduct the service in its entirety. Women committed to observance of Halakhah are careful not to recite <i>kaddish, kedushah</i> and other portions of the service which require a <i>minyan</i>, i.e., a quorum of ten males, and which are omitted when praying privately. Many of the organizers and participants in such groups are sincerely motivated by a desire for active participation in what they perceive as a meaningful and edifying religious experience. Nevertheless, there is no gainsaying the fact that no rabbinic authority of stature has been willing to endorse this innovation in the religious life of our community. At best, the reaction is unenthusiastic; at worst, the reaction is outright condemnation as violation of the halakhic norm.1<i class="footnote">For published reactions see R. Moses Feinstein, <i>Iggerot Mosheh, Oraḥ Ḥayyim</i>, IV, no. 59; R. Joseph B. Soloveichick, quoted by R. Moshe Meiselman, <i>Jewish Woman and Jewish Law</i> (New York, 1978), p. 19, note 64 and R. Herschel Schachter, <i>Bet Yiẓḥak</i>, XVII (5745), 118-35.</i> There are a number of considerations which may or may not rise to the order of a halakhic prohibition but which certainly should inform the formulation of "public policy" regarding this highly sensitive issue. 
  It is somewhat ironic that feminists have introduced a hitherto unknown element of sexism into the realm of prayer. <i>Tefillah be-zibbur</i> (i.e., prayer with a <i>minyan</i>) may be a male responsibility, but females were never excluded. To be sure, a <i>meḥizah</i> or wall separates the sexes, but the experience of praying as a <i>zibbur</i> (formal community) has always been shared by all. Women may join male <i>minyanim</i> but the reverse is not the case. The services conducted by female groups and led by female officiants simply do not qualify as <i>tefillah be-zibbur</i>. Women whose obligation is entirely individual and personal in nature may gather together and pray as a group of individuals, not a <i>zibbur</i>. Males have an obligation of <i>tefillah be-zibbur</i> which effectively precludes their participation in women's <i>minyanim</i>—even from behind a <i>meḥizah</i>. Moreover, a female officiant quite understandably desires to serve not only as a <i>sheliaḥ zibbur</i> but also as a <i>ḥazanit</i> and hence does not merely recite the prayers aloud but sings or chants in a melodious manner. The singing—even of prayers and psalms—presents serious problems of <i>kol ishah</i> (women's song) for a male participant. 
  There is no question that many women who participate in women's prayer groups are highly sincere and are prompted by the loftiest of motives. Nevertheless, one can only conclude that their rabbinic mentors have misled them by reason of the latter's own lack of erudition. It is true that women have no obligation with regard to <i>tefillah be-zibbur</i>. According to many authorities, they are nevertheless obligated to pray at least twice daily—<i>shaḥarit</i> and <i>minḥah</i>. A woman can satisfy that obligation either by praying privately or with a <i>minyan</i>. If she chooses to pray privately she is in no way remiss; but if she does pray with a <i>minyan</i> she enjoys the <i>kiyyum</i> (fulfillment) of <i>tefillah be-zibbur</i>. Not the least of the advantages of <i>tefillah be-zibbur</i> is the assurance that "the prayer of the community is always heard; even if there are transgressors among them, the Holy One, blessed be He, does not disdain the prayer of the multitude" (Rambam, <i>Hilkhot Tefillah</i> 8:1). 
  This point may be illustrated by the following analogy: No one is obligated to invest funds in order to earn a profit. Many people have no spare cash to invest. Others have neither the inclination nor the desire to pursue investment opportunities. But consider the person who does have both the funds and the desire to invest. He or she is offered two separate investment opportunities. Each is entirely risk-free and open-ended in terms of potential profit. The second is tied to the first in the sense that it is guaranteed to yield no less a return then the first but carries the additional advantage of a guaranteed minimum return. Which offer should the investor choose? Since the first investment opportunity carries no advantage over the second, while the second bears the distinct advantage of a guaranteed return, the choice is obvious. An investment counselor who recommends the first investment over the second has not only offered poor advice but has transgressed the biblical commandment "and thou shalt not place a stumbling block before the blind" (Leviticus 19:14). The Sages declare that this prohibition is directed against offering imprudent advice to a "blind" (i.e., an uninformed) person in need of guidance. 
  That women enjoy a <i>kiyyum</i> of <i>tefillah be-zibbur</i> and receive reward for participation in communal worship is evident from an anecdote recorded in <i>Yalkut Shim'oni, Parshat Ekev</i>, no. 871. An aged woman came before R. Yose ben Halafta, and told him that her life had become inordinately burdensome and, accordingly, she sought his counsel in finding a way in which her demise might be hastened. Upon inquiry, R. Yose ben Halafta discovered that the woman was meticulous in attending synagogue services daily. Thereupon he advised her to refrain from worshipping in the synagogue for three consecutive days. She did so and on the third day she became terminally ill. It is clear from this narrative that the woman was not advised to refrain from prayer altogether; indeed, that would have constituted a transgression and could not be countenanced. Rather, the woman was counseled to abstain from communal prayer in the synagogue on the assumption that it was due to the merit acquired through communal prayer that she was granted longevity and that, were she to desist from communal prayer, such compensation would no longer be forthcoming.2<i class="footnote">The comments of the thirteenth-century talmudic commentator, R. Menachem Me’iri, <i>Rosh ha-Shanah</i> 28a, certainly reflect recognition that women may share in the <i>kiyyum</i> of <i>tefillah be-ẓibbur</i>. Me’iri’s remarks that women who pray in “a synagogue separate unto themselves” do not share in communal prayer. Clearly, the inference to be drawn from this comment is that, when praying in the synagogue proper, they do enjoy the benefits of <i>tefillah be-ẓibbur</i>. The categorization “a synagogue separate unto themselves” does not apply to women’s sections of contemporary synagogues. Nor, apparently, was his comment germane with regard to synagogues in use during the talmudic period. Indeed, Me’iri explicitly limits his comment to “our women.”</i>
  As noted earlier, a woman whose spirit fails to move her to participate in communal prayer may pray at home. But a woman willing to invest the time, effort and spiritual energy in search of a higher form of prayer should recognize that the time and effort invested in attending synagogue services will certainly yield no less a return than she will reap from participation in a women's prayer group and that, while synagogue attendance carries a guaranteed return, other modes of prayer do not. "The Holy One, blessed be He, does not disdain the prayer of the multitude" refers only to <i>tefillah be-zibbur</i>, not to the prayer of groups of individuals, of any sex, which do not constitute a <i>minyan</i>. Little wonder, then, that there is no encouragement of women's prayer groups on the part of knowledgeable rabbis! Such encouragement would be tantamount to <i>lifnei iver</i>—advising a less advantageous mode of action when a parallel and much more advantageous course of conduct is readily available. 
  Many participants in women's <i>minyanim</i> speak and write movingly of the religious experience such participation brings them. Presumably, some may argue that the religious experience in which they share is sufficient reason to sacrifice the incontrovertible advantages of <i>tefillah be-zibbur</i>. That position is predicated upon a fundamental error—if not an error of Halakhah, then an error of <i>hashkafah</i> or religious perspective. 
  Let these comments not be understood as denigrating the value of religious experience. <i>Kavanah</i> (devotion) is certainly a form of religious experience and its value cannot be extolled too greatly. But Judaism recognizes a hierarchy of values and <i>kavanah, deveikut</i>, religious experience or "attachment," desirable and laudable as they may be, should never be permitted to supplant other values. The fulfillment of a <i>mizvah</i> in an optimal manner, albeit without extraordinary <i>kavanah</i>, is to be favored over less optimal fulfillment accompanied by fervent religious experience. 
  R. Chaim of Volozhin, <i>Nefesh ha-Hayyim, sha'ar</i> I, chapter 22, makes this point most eloquently. One who eats <i>mazah</i> on <i>Pesaḥ</i>, or lifts the four species on <i>Sukkot</i> but experiences absolutely nothing that can be described as uplifting or spiritually edifying has nonetheless fulfilled a divine command; his act has cosmic ramifications and he will receive great reward. Of course, <i>kavanah</i> would greatly enhance the already inestimable value of the <i>mizvah</i>, and should be the object of aspiration, but failure to achieve such <i>kavanah</i> is no cause for distress. On the other hand, eating <i>mazah</i> on <i>Sukkot</i> or lifting the four species on <i>Pesaḥ</i>, regardless of any attendant "religious experience," is entirely devoid of significance. 
  <i>Kavanah</i> and the most intense of religious experiences are essentially meaningless if the act itself is deficient in any way, even if only by virtue of inattention to one of the myriad details which constitute the <i>sine qua non</i> of the requisite fulfillment of the <i>mizvah</i>. Similarly, the enhancement of a <i>mizvah</i> in its objective performance takes precedence over intensification of subjective religious experience.3<i class="footnote">See R. Moses Feinstein, <i>Iggerot Mosheh, Oraḥ Ḥayyim</i>, III, no. 7.</i> Assuredly, the guaranteed benefits of <i>tefillah be-zibbur</i> outweigh those of any possible subjective experience. This ranking of values is intrinsic to the value system upon which Halakhah is predicated; the choice of optimal performance of a <i>mizvah</i> over intensification of <i>kavanah</i> when confronted by a choice between the two is a substantive matter of Halakhah itself. It was against those who challenged this view that the <i>Nefesh ha-Hayyim</i> was written and against whom R. Chaim of Volozhin inveighed. 
  Even more distressing is the public reading of the Torah which is the major innovation of women's <i>minyanim</i>. One is touched by the emotional description of this experience and of how much it means to the participants. Yet, the obvious sincerity of the exponents is not matched by objective considerations. 
  Certainly, it is permissible for any person to read or to study from a Torah scroll at any time. Indeed, the original biblical rule was that the Written Law may be studied only from a written text, which by definition means a <i>Sefer Torah</i> written on parchment in the prescribed manner. Two thousand years ago that would have been the only permissible way of studying the words of the Torah. But rabbinic exegesis renders Psalms 119:126 as "It is time to act on behalf of God; thwart Thy Torah." This verse is understood as teaching that when it becomes impossible to transmit the Oral Law without committing it to writing or when it becomes impossible to teach the Written Law solely by means of a properly written scroll, other methods may be used. Hence, today there is absolutely no cogent reason for utilizing a Torah scroll rather than a printed text for purposes of Torah study. On the contrary, use of an unvocalized text can only lead to error and yield misinformation. 
  The sole reason for utilization of a Torah scroll in conjunction with communal services is the fulfillment of the rabbinic requirement which demands that such reading be from a properly written scroll. Although disputed by other authorities, <i>Magen Avraham, Oraḥ Hayyim</i> 282:6, cites <i>Masekhet Soferim</i> as ruling that women are required to attend the reading of the Torah. Nevertheless, such reading must be conducted in conjunction with a properly constituted (i.e., male) <i>minyan</i>. Women's prayer groups cannot fulfill that obligation even when a Torah scroll is utilized. In no way can the reading of the Torah in such a context be categorized as even a voluntary fulfillment of the rabbinic commandment. Since use of a <i>Sefer Torah</i> is halakhically meaningful only when it is used for purposes of fulfillment of the rabbinic commandment, the formal use of a Torah scroll by women who candidly acknowledge that they do not thereby fulfill the rabbinic requirement borders on the farcical. 
  In instituting <i>Kri'at ha-Torah</i> complete with <i>aliyot</i> (although without recitation of blessings) there is manifest a clear desire to establish a formal, innovative, liturgical ritual. That, in itself, is objectionable. Rambam, <i>Hilkhot Melakhim</i>, chapters 9 and 10, spells out in detail the obligations of non-Jews under the Noachide Code. They must abjure idolatry and accept the Seven Commandments of the Sons of Noah. But Rambam adds in 10:9, that, even as monotheists, they are not permitted to develop religious practices of their own: <i>"ein maniḥin otan le-ḥadesh dat ve-la'asot mizvot le-azman</i>—they are not permitted to create a religion and to make commandments for themselves."
  This ruling, at first blush, is somewhat puzzling. After all, the people of whom Rambam speaks believe in the one God; the practices contemplated are not idolatrous in nature. The rituals described are certainly innovative but they appear to be entirely innocuous. There is no mention of an accompanying claim of divine mandate. Why should we interfere with harmless rituals which non-Jews perceive as meaningful religious experiences and from which they derive spiritual satisfaction? Rambam's statement is even more puzzling since the talmudic source for this ruling is far from unequivocal. 
  It appears that Rambam finds cause for concern precisely because the persons described are monotheists who have accepted so much of Jewish practice and teaching. Permitting such individuals to generate novel rituals and religious practices would lead to confusion and misapprehension with regard to divine law. It might rapidly be assumed that such commandments are indeed of divine origin and are binding upon Noachides. The concern is not with regard to the act <i>per se;</i> the act itself if indeed perfectly innocuous and no ostensible halakhic objection can be raised. The objection is that the practice acquires the characteristics and overtones of a divinely mandated ritual and as such itself becomes a <i>ziyuf ha-Torah</i>—a falsification of the <i>mesorah</i>, i.e., of the Law handed down from generation to generation. 
  It is clear that what Rambam forbids Noachides is prohibited to Jews as well. Jews, after all, are explicitly commanded, "You shall not add to the matter which I command you" (Deuteronomy 4:2). One hesitates to state that Torah reading and <i>aliyot</i>, at least as now practiced by women's prayer groups, fall within the category of the forbidden ritual innovations prescribed by Rambam in <i>Hilkhot Melakhim</i>. Nevertheless, it appears that such practices come dangerously close to being so.4<i class="footnote">There is yet another consideration that augurs against women’s prayer services which include the Reading of the Torah. Rema, <i>Oraḥ Ḥayyim</i> 88:1, records a difference of opinion with regard to whether it is proper for a woman to enter a synagogue during the time of her monthly menstrual period. <i>Magen Avraham, Oraḥ Ḥayyim</i> 88:2, and <i>Taz, Oraḥ Ḥayyim</i> 88:2, followed by <i>Mishnah Berurah</i> 88:7, indicate that it is our practice for women to attend services in the synagogue at such times but caution them not to gaze at the Torah scroll when it is lifted to be shown to the assemblage. <i>Kaf ha-Ḥayyim, Oraḥ Ḥayyim</i> 88:11, permits such women even to gaze upon the script of the Torah scroll.Although none of these authorities distinguish between gazing upon a <i>Sefer Torah</i> and touching it, there are sources that indicate that a distinction must be drawn between mere gazing and touching. Apparently, it was the practice in some circles to place a Torah scroll in the hands of a woman experiencing severe difficulty in labor. <i>Teshuvot Ḥinnukh Bet Yehudah</i>, no. 71, decries this practice on the grounds that a woman in a state of ritual impurity should not touch the <i>Sefer Torah</i> and therefore advises that the Torah scroll be brought only to the door of the delivery room “that the merit of the Torah protect her” but that the scroll not be placed in her hands. It is clear that <i>Teshuvot Ḥinnukh Bet Yehudah</i> forbids such women to touch even the wooden handles to which the parchment scroll is attached. A similar position is recorded in the name of <i>Sefer Torat Ḥannokh</i> by R. Dov Ber Spitzer, <i>“Seder Ḥinnukh Sefer Torah,”</i> sec. 3, published in <i>Toldot Kol Aryeh</i> (New York, 5723). However, <i>Shulḥan Arukh, Yoreh De‘ah</i> 282:8, specifically permits a menstruating woman to touch a Torah scroll.</i>
  There is no substitute for the prayer of the community as a unified whole. As so eloquently stated by Ramban in his commentary on Exodus 13:16, "The purpose of … synagogues and the merit of communal prayer is that people have a place wherein they assemble and express gratitude to the Almighty … and proclaim publicly and say before him 'we are Your creatures!' " To this end Jews, men and women alike, join together in the synagogue in common and collective expression of worship and devotion. 
  Immersion of a Bride Lacking a Uterus
  Jewish law requires that, subsequent to accepting a proposal of marriage, a woman regard herself as a <i>niddah</i>. Accordingly, even if she does not menstruate during the interim period, the bride must nevertheless perform the requisite examinations over a period of seven days and immerse herself in a <i>mikveh</i>. The Gemara, <i>Niddah</i> 66a, explains that the emotional reaction generated by acceptance of a marriage proposal may cause minute spotting which, because of its paucity, is not perceived either tactilely or visually. Jewish law also requires that a virgin be considered a <i>niddah</i> subsequent to her initial intercourse. Although only the flow of uterine blood causes a woman to become a <i>niddah</i>, rabbinic law requires that a virgin regard herself as a menstruant upon her initial act of intercourse lest confusion arise due to lack of awareness of the halakhic distinction between hymenal and uterine bleeding. 
  In a collection of articles, <i>Kovez Ma'adanei Melekh</i>, published by the Lubavitch Foundation of Great Britain in 5743 in honor of the eightieth birthday of the Lubavitcher <i>Rebbe</i>, Rabbi Shrage Feivish Schneebalg examines the question of whether a woman who lacks a uterus is required to undergo immersion in a <i>mikveh</i>. The uterus may be absent as a result of a congenital anomaly, as in the case presented for Rabbi Schneebalg's consideration, or, more frequently, as a result of a hysterectomy. In either event, it is physiologically impossible for a woman lacking a uterus to become a <i>niddah</i> since, by definition, only uterine bleeding causes a state of <i>niddah</i>. Thus, under such circumstances, there is no factual consideration upon which to base a fear of unperceived menstrual bleeding. To be sure, both post-menopausal and pre-menarcheal brides are required to wait the statutory seven-day period and to undergo immersion even though the likelihood of menstrual spotting is highly remote.5<i class="footnote">However, with regard to post-menopausal women, cf., the discussion of R. Yehudah Asad, <i>Teshuvot Yehudah Ya‘aleh</i>, I, no. 191.</i> Nevertheless, the question which must be resolved is whether the rabbinic decree is blanket in nature and applies in all cases, including those in which there is no physiological possibility of the bride becoming a <i>niddah</i>, or whether it is limited to cases in which at least a remote possibility of intramenstrual spotting is present. 
  <i>Teshuvot Imrei David</i>, no. 125, rules that the seven-day waiting period and subsequent immersion in a <i>mikveh</i> is required even in the case of a bride who has no uterus. <i>Imrei David's</i> principal argument is based upon a statement of the Gemara, <i>Ketubot</i> 60b. Jewish law forbids a widow or divorcée to enter into a new marriage until a three-month period has elapsed following the termination of the first marriage. This statutory waiting period is required in order that there be no question with regard to the paternity of a future child in the event that the woman is found to be pregnant shortly after consummation of the second marriage. The Gemara, <i>Ketubot</i> 60b, declares that even a post-menopausal woman, a barren woman, a woman who experiences a miscarriage after the death of her husband or after her divorce, or a woman who "cannot give birth," i.e., a woman who lacks a uterus, is also required to wait the statutory three-month period. This decree is clearly universal in nature and applies to all women, including women who could not possibly become pregnant. Although the rationale upon which the decree is based does not apply in such situations, and hence there exists no compelling reason to require such women to wait three months, the rabbinic decree is nevertheless applicable because it admits no exception (<i>lo pelug)</i>. Arguably, the same should be true with regard to the rabbinic decrees requiring prospective brides, and virgins subsequent to their first act of intercourse, to consider themselves as menstruants. 
  Rabbi Schneebalg, however, rebuts this argument, claiming that the rabbinic decree concerning the three-month waiting period cannot serve as a paradigm with regard to other rabbinic edicts. Rashi, <i>Yevamot</i> 42b, comments that the edict was explicitly made applicable to women who could not possibly bear children lest other women erroneously fail to observe the three-month waiting period. Hence, argues Rabbi Schneebalg, absent evidence of specific intent on the part of the Sages to include a woman lacking a uterus in other edicts, there is no basis for assuming that such decrees are universal in nature. 
  Some evidence that these edicts are not universal in nature, and hence are not designed to apply when there is no possibility of menstrual bleeding, may be adduced from the comments of R. Shlomoh Kluger, <i>Mei Niddah, Kuntres Aharon</i> 192:4. In discussing the status of a premenarcheal bride, Rabbi Shlomoh Kluger declares that, although there is no cogent reason to suspect possible menstrual bleeding, the pre-menarcheal bride must consider herself a <i>niddah</i> because young girls were not exempted from the provisions of the decree (<i>lo pelug</i>)<i></i>. R. Shlomoh Kluger, however, cites the opinion of R. Zalman Margulies who maintains that the decree is applicable to pre-menarcheal women because of the remote possibility, however unlikely, that they may indeed experience bleeding. Thus, R. Zalman Margulies quite evidently rejects the concept of <i>lo pelug</i> in this context. Even R. Shlomoh Kluger, who accepts the concept of <i>lo pelug</i> in this instance, might well maintain that the concept of <i>lo pelug</i> applies only to situations in which the concern is at least a logical possibility, but not in situations in which such legislation would be entirely devoid of cogency. Moreover, <i>Taz, Oraḥ Hayyim</i> 275:1 and <i>Even ha-Ezer</i> 119:12, asserts that the concept of <i>lo pelug</i> applies only to varying situations in which a given individual may find himself, i.e., a person to whom a rabbinic edict is applicable may be bound by that edict under all circumstances, but that the principle does not apply "from person to person," i.e., it does not apply to a person who does not at all come within the ambit of rabbinic intent. <i>Taz</i> maintains that a person to whom a particular rabbinic edict is at no time logically applicable is not at all subject to that legislation. Additional evidence for the validity of this thesis is advanced by R. Joseph Saul Nathanson, <i>Sho'el u-Meshiv, Mahadura Kamma</i>, I, no. 22. 
  R. Yitzchak Ya'akov Weisz, <i>Teshuvot Minḥat Yizḥak</i>, I, no. 125, sec. 7, adduces evidence supporting the view that even a bride lacking a uterus must undergo immersion in a <i>mikveh</i>. Genesis 29:31 describes Rachel as an <i>"akarah</i>." Rashi, <i>Yevamot</i> 42b and <i>Sotah</i> 25b, states that the term <i>"akarah</i>" does not simply mean "barren" but is derived from the Hebrew verb "<i>akor</i>" meaning "to uproot" or "to pluck out" and is used to describe a woman who is sterile because she lacks a uterus. Accordingly, a miracle was necessary in order to effect an anatomical change so that Rachel might conceive. Yet, <i>Arukh ha-Shulḥan, Yoreh De'ah</i> 192:3, states that Laban's motive in directing Jacob to wait a week following his marriage to Leah before marrying Rachel (Genesis 29:27) was a concern for fulfilling the halakhic requirement that a bride deem herself to be a <i>niddah</i> and wait the statutory seven-day period before immersing herself in a <i>mikveh</i> (and not because of the reason given by the Palestinian Talmud, <i>Mo'ed Katan</i> 1:7, cited by <i>Tosafot, Mo'ed Katan</i> 8b, to the effect that "one should not mingle one celebration with another celebration" and hence if one sister marries, the second sister should not marry until the week-long nuptial celebrations of the first sister have been completed). Subsequent to Laban's duplicity in substituting Leah in place of Rachel, a new agreement was reached between Laban and Jacob for an additional seven years of labor in return for the hand of Rachel in marriage. The negotiation of that agreement was tantamount to a new proposal of marriage which again required a waiting period of seven days. However, since Rachel lacked a uterus and hence it would have been impossible for her to become a <i>niddah</i>, this concern would not have been cogent unless the rabbinic edict applies to all women without exception. <i>Minḥat Yizḥak</i>, however, rejects this argument and states that Rachel may have undergone a partial hysterectomy which left a portion of her uterus intact and, accordingly, she might yet have been capable of experiencing menstruation. Rabbi Schneebalg notes that Scripture describes Rachel as an <i>akarah</i> only after it reports her marriage to Jacob. Failure to disclose Rachel's barrenness may well have been part of Laban's duplicity. Hence, Jacob may have been unaware of Rachel's condition prior to their marriage and, therefore, may have erroneously insisted upon the seven-day waiting period. 
  In a more recent volume, <i>Teshuvot Minḥat Yizḥak</i>, VIII, no. 93, Rabbi Weisz affirms his earlier position that a bride who has undergone a hysterectomy need not immerse herself in a <i>mikveh</i>, but cautions that it is necessary to determine that the entire uterus has been removed.6<i class="footnote">See R. Shlomoh Zalman Auerbach’s treatment of a related topic in <i>No‘am</i>, VII (5724), 161-62. Although Rabbi Auerbach does not explicitly refer to the question of <i>lo pelug</i>, his omission of such discussion serves to indicate that, in his opinion, a bride is not required to immerse herself in a <i>mikveh</i> when it is known with certainty that she has not experienced a discharge of blood which would cause her to become a <i>niddah</i>.</i>
  Nevertheless, R. Judah Leib Zirelson, <i>Ma'arkhei Lev</i>, no. 44, rules that a bride who has had a hysterectomy must undergo immersion in a <i>mikveh</i> because of the principle of <i>lo pelug. Ma'arkhei Lev</i> incongruously adds that even subsequent to a hysterectomy there exists the possibility of menstrual bleeding from tissues surrounding the uterus. However, as Rabbi Schneebalg points out, <i>Sifra, Parshat Mezor'a</i>, chapter six, 4:2, followed by Rambam, <i>Hilkhot Issurei Bi'ah</i> 5:5, and <i>Shulḥan Arukh, Yoreh De'ah</i> 183:1, declare that only uterine blood generates a state of <i>niddah</i>. Accordingly, R. Joseph Engel, <i>Teshuvot Maharash</i>, VII, no. 12, and R. Aaron Walkin, <i>Teshuvot Zekan Aharon</i>, II, no. 3, rule that a woman who has undergone a hysterectomy cannot become a <i>niddah</i>. 
  Rabbi Schneebalg concludes his discussion by citing <i>Sefer Hasidim</i>, no. 389, whose phraseology indicates that immersion in a <i>mikveh</i> is required even for a bride who has definitely not experienced any discharge of blood. In light of these conflicting opinions, Rabbi Schneebalg advises that a bride who lacks a uterus should immerse herself in a <i>mikveh</i> without pronouncing the benediction. 
  
  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 VI Artificial Feeding on Yom Kippur
  
  <i>But on this day, that is the Day of Atonement, which is called holy, the Tree of Life has dominion … and through it no misfortune shall befall you</i>. 
  ZOHAR, BEMIDBAR 254
  As is well known, virtually all biblical prohibitions are suspended in order to provide for the treatment of a patient afflicted with a life-threatening illness. Nevertheless, in accordance with the ruling of Rema, <i>Oraḥ Hayyim</i> 328:12, any infraction must be mitigated to the extent that it is possible to do so, provided that the health of the patient is not compromised thereby. Thus for example, a Jew should not perform a forbidden act on <i>Shabbat</i> if a non-Jew can be directed to do so. Similarly, if the Jew must perform the act himself, it should be performed in an unusual manner, e.g., with the left hand rather than with the right. Since acts performed in an unusual manner are forbidden only by virtue of rabbinic decree, the severity of the infraction is thereby reduced. Certainly, when the patient's needs can be satisfied in a manner which involves no infraction of Jewish law, otherwise forbidden acts should not be performed either by the patient himself or by others on his behalf. 
  Eating and drinking on <i>Yom Kippur</i> are certainly permissible when to abstain from food and drink would endanger the life of a patient. Yet, in order to minimize the infraction, the patient is required, when possible, not to eat and drink in the usual manner, but to eat and drink minimal quantities of food and liquid over an extended period of time. In recent years, intravenous feeding and the use of nasogastric tubes have become commonplace in the treatment of patients who are unable to take nourishment by mouth. For at least limited periods of time the nutritional needs of any individual may be satisfied in such manner without ill effect. This has led many individuals to question whether, in light of the present availability of such forms of nutrition, patients may still be permitted to eat in a normal manner on <i>Yom Kippur</i>. Halakhic authorities who have discussed the question of substitution on <i>Yom Kippur</i> of intravenous feeding for normal feeding are virtually unanimous in their conclusion that no patient is required to avail himself of such forms of nourishment. One authority asserts that, not only is the patient not required to seek such forms of artificial feeding, but that initiation of intravenous feeding in order to obviate the need for eating on <i>Yom Kippur</i>, when not otherwise medically indicated, is forbidden by Halakhah. These authorities, however, reach a common conclusion on the basis of varied considerations. 
  There is no question that, insofar as forbidden foods are concerned, ingestion of such substances intravenously or through a nasogastric tube does not involve a biblical transgression. The various categories of forbidden foods are proscribed on the basis of scriptural prohibitions couched in the phrase "thou shall not eat." The definition of "eating" is the subject of a controversy between Rav Yoḥanan and Resh Lakish recorded by the Gemara, <i>Hullin</i> 103b. Resh Lakish maintains that such commandments prohibit any "enjoyment" of forbidden foods "by the intestines" while Rav Yoḥanan regards the prohibition as forbidding "enjoyment by the palate." Since Rambam, <i>Hilkhot Ma'akhalot Assurot</i> 14:3, rules in accordance with the opinion of Rav Yoḥanan, it would appear that there is no basis for assuming a biblical prohibition with regard to any foodstuff which is not swallowed by mouth. However, R. Abraham Samuel Benjamin Sofer, <i>Teshuvot Ketav Sofer, Oraḥ Hayyim</i>, no. 117, <i>s.v. ve-aḥar</i>, asserts that Rav Yoḥanan concedes that any act involving "enjoyment by the intestines" constitutes a form of eating; Rav Yoḥanan simply adds that "enjoyment by the palate," absent digestion by the intestines, also constitutes a form of "eating" and it is that point which is disputed by Resh Lakish. Thus, according to <i>Ketav Sofer'</i>s analysis, ingestion of forbidden substances in a manner such that the food is digested in the intestines, e.g., nasogastric feeding, is forbidden by both Rav Yoḥanan and Resh Lakish. Nevertheless, even according to this analysis, ingestion of forbidden foods in such a manner must be regarded as forbidden only by rabbinic edict rather than by virtue of biblical law. The Gemara, <i>Pesaḥim</i> 115b, states that one who wraps <i>mazah</i> in some other substance and swallows the <i>mazah</i> in that manner does not thereby fulfill the <i>mizvah</i> of eating <i>mazah</i>. Swallowing <i>mazah</i> in this manner constitutes consumption of food <i>she-lo ke-derekh akhilah</i>, i.e., "not in the manner of eating." In order to discharge one's obligation with regard to eating <i>mazah</i> or the like, the food must be consumed in a normal or usual manner. Thus, although ingestion of food in any manner may constitute "eating" so long as the intestines derive "enjoyment" therefrom, the "eating" may yet be <i>she-lo ke-derekh akhilah</i>. Similarly, consumption of forbidden food in an unusual manner, although rabbinically proscribed, does not constitute a violation of a biblical commandment.1<i class="footnote">Cf., however, <i>Mishneh le-Melekh, Hilkhot Ma’akhalot Assurot</i> 14:2; <i>Mareh ha-Panim</i>, Palestinian Talmud, <i>Shevu‘ot</i> 3:3; and <i>Teshuvot Maharsham</i>, I, no. 124.</i>
  Accordingly, when required by an ill person, ingestion of forbidden foods in such a manner, since it is only rabbinically enjoined, is ostensibly to be preferred to swallowing the same food in a normal manner. Indeed, as recorded by <i>Shakh, Yoreh De'ah</i> 155:4, consumption of forbidden foods in an unusual manner is permitted to any ill person even though he does not suffer from a life-threatening illness. 
  These conclusions may, however, not appear relevant with regard to the prohibition against eating and drinking on <i>Yom Kippur</i>. That prohibition is not couched in a phrase admonishing "thou shalt not eat" but rather in the words "and you shall afflict your souls" (Leviticus 16:31). Indeed, the quantity of food that must be consumed on <i>Yom Kippur</i> in order to incur the biblically-prescribed punishment, viz., food equal in quantity to a dried date, is greater than the olive-size measure which is the quantity of a forbidden food that must be consumed in order to incur punishment because, even though consumption of an olive constitutes "eating," "affliction" is not mitigated by consumption of a quantity of food less than the equivalent of a dried date. It is for this reason that <i>Sha'agat Aryeh</i>, no. 76, declares that partaking of food on <i>Yom Kippur</i> in an unusual manner is biblically forbidden.2<i class="footnote">Cf., however, Rambam, <i>Hilkhot Yesodei ha-Torah</i> 5:8; R. Jacob Ettlinger, <i>Binyan Ẓion</i>, no. 35; and <i>Teshuvot Ketav Sofer, Oraḥ Ḥayyim</i>, no. 111.</i> According to <i>Sha'agat Aryeh</i> it is negation of the "affliction" experienced in fasting, rather than "eating" <i>per se</i>, which constitutes the essence of the <i>Yom Kippur</i> prohibition. Similarly, <i>Minḥat Hinnukh</i>, no. 313; R. Moses Sofer, <i>Teshuvot Hatam Sofer, Oraḥ Hayyim</i>, no. 127, <i>s.v</i>. <i>tu</i>; and <i>Teshuvot Ketav Sofer, Oraḥ Hayyim</i>, no. 117, <i>s.v. ve-aḥar</i>, maintain that partaking of food on <i>Yom Kippur</i> can entail no biblical violation in the absence of "enjoyment by the intestines" (<i>hana'at mei'av</i>), i.e., unless hunger is at least somewhat appeased by means of digestion.3<i class="footnote">This view is, however, explicitly rejected by <i>Teshuvot Maharsham</i>, I, no. 124; R. Meir Simchah ha-Kohen of Dvinsk, <i>Or Sameaḥ, Hilkhot Shevitat Asor</i> 2:4; and R. Chaim Ozer Grodzinski, <i>Teshuvot Aḥi‘ezer</i>, III, no. 61.</i> The rationale underlying the opinion of these authorities is that the essence of the <i>Yom Kippur</i> prohibition is the mitigation of "affliction" rather than the act of eating. Arguably, it would then follow that, according to these authorities, any form of nourishment which assuages hunger is forbidden on <i>Yom Kippur</i>. 
  This conclusion was, in fact, espoused by an anonymous interlocutor who consulted R. Chaim Ozer Grodzinski with regard to whether it is permissible to introduce foodstuffs into the intestines rectally without violating <i>Yom Kippur</i> restrictions. That anonymous writer opined that such an act was biblically forbidden upon pain of the same penalty as the swallowing of food by mouth. R. Chaim Ozer, <i>Teshuvot Aḥi'ezer</i>, III, no. 61, peremptorily dismisses this contention by citing the interpretation of the verse "who fed you in the wilderness with manna … that He might afflict you" (Deuteronomy 8:16)4<i class="footnote">Actually, apparently citing <i>Yoma</i> 74b from memory, <i>Aḥi‘ezer</i> quotes the earlier verse “and He afflicted you and caused you to hunger and fed you manna” (Deuteronomy 8:3) from which the point emerges with even greater clarity. It is not at all clear why <i>Yoma</i> 74b cites Deuteronomy 8:16 rather than Deuteronomy 8:3.</i> adduced by the Gemara, <i>Yoma</i> 74b. On the basis of the association of "affliction" with "eating" in the verse cited, the Gemara demonstrates that the "affliction" commanded on <i>Yom Kippur</i> is abstention from food, rather than some other form of self-denial. Accordingly, argues <i>Aḥi'ezer</i>, violation of the commandment mandating "affliction" on <i>Yom Kippur</i> occurs only if hunger is assuaged by "eating"; hunger that is assuaged other than by means of swallowing food in the normal manner is yet regarded as "affliction."5<i class="footnote">Cf., <i>Teshuvot Binyan Ẓion</i>, no. 35.</i> <i>Aḥi'ezer</i> also cites <i>Minḥat Hinnukh</i>, no. 313, who maintains that there can be no violation of the <i>Yom Kippur</i> prohibition other than through both "enjoyment by the intestines" and "enjoyment by the palate." <i>Minḥat Hinnukh</i> maintains that this is also the position of Resh Lakish with regard to the prohibition against partaking of forbidden foods. The dispute between Rav Yoḥanan and Resh Lakish occurs in the context of a discussion of an individual who swallows a quantity of forbidden food equivalent to half an olive, regurgitates what he has swallowed, and swallows it again. Resh Lakish asserts that the individual has derived nutritional benefit (<i>hana'at mei'av)</i> from only a half-olive quantity of forbidden food and hence the individual incurs no penalty. Rav Yoḥanan disagrees and asserts that, since the palate has twice derived pleasure from forbidden food equal in measure to a half olive by swallowing the same half olive twice, the result is that the palate has experienced pleasure equivalent to that derived from food equal in measure to an entire olive and hence punishment is incurred. Yet, even according to Resh Lakish, no penalty is incurred unless the forbidden food is swallowed by mouth as is evidenced by the provision that if the food is encased in other substances, thereby depriving the palate of pleasure, no penalty is incurred. In a like manner, argues <i>Minḥat Hinnukh</i>, with regard to <i>Yom Kippur</i>, all maintain that a violation of the prohibition occurs only in the presence of both "enjoyment by the intestines" and "enjoyment by the palate." Accordingly, concludes <i>Aḥi'ezer</i>, even according to <i>Minḥat Hinnukh</i> and <i>Hatam Sofer</i>, there can be no infraction of the prohibition against eating on Yom Kippur unless food enters the stomach through the mouth. This position is also espoused by <i>Teshuvot Ketav Sofer, Oraḥ Hayyim</i>, no. 117; <i>Teshuvot Kol Aryeh</i>, no. 74; and <i>Teshuvot Maḥazeh Avraham</i>, no. 129.6<i class="footnote">See also R. Dov Berish Weidenfeld, <i>Teshuvot Dovev Meisharim</i>, III, no. 88 and additional sources cited in <i>Likkutei He’arot al She‘elot u-Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim</i>, no 127, sec. 9.</i>
  The earliest discussions of artificial forms of feeding on <i>Yom Kippur</i> appear to be two responsa of R. Shalom Mordecai Schwadron, <i>Teshuvot Maharsham</i>, I, nos. 123 and 124. In the first responsum <i>Maharsham</i> discusses the permissibility of introducing food "by way of the intestines" (possibly gastrogavage or, more likely, in light of the medical technology of the day7<i class="footnote">Actually, although the procedure was certainly not widely utilized during the lifetime of <i>Maharsham</i>, the first successful gastrostomy was performed in Paris in 1876. See A. Verneuil, “Observation de gastro-stomie pratiquée avec succès pour un rétrécissement cicatriciel infranchissable de l’oesophage,” <i>Bulletin de i’Académie de Médecine</i> 2 série, (Paris) V (1876), 1023-38.</i> and <i>Maharsham's</i> subsequent use of the phrase <i>"derekh matah,"</i> introduction of food through the rectum) while, in the second responsum, he describes a surgical procedure involving an incision into the throat in order to permit the insertion of a feeding tube directly into the esophagus. <i>Maharsham</i> had no difficulty in issuing a permissive ruling with regard to the first query, but, as noted by R. Ya'akov Breisch, <i>Teshuvot Helkat Ya'akov</i>, II, no. 58, he did so on the basis of an assumption which—at least insofar as current modes of artificial feeding are concerned—is at variance with medical knowledge. Citing Rashi, <i>Hullin</i> 71a, <i>Maharsham</i> declares that food "which is introduced from 'below' will never be digested" and hence "… is not in the category of food but [is] as if [it] lies in a box." <i>Helkat Ya'akov</i> observes that, quite apart from the reason advanced by <i>Maharsham</i>, such a procedure may certainly be utilized by a sick person since the process involves no "enjoyment by the palate" and is also an unusual manner of eating (<i>she-lo ke-derekh akhilah</i>). In the second responsum, <i>Maharsham</i> himself permits feeding through an esophageal tube on the grounds that no enjoyment is experienced by the palate and the method involves an unusual form of eating. Nevertheless, <i>Maharsham</i> recommends that even though the patient is fed through an esophogeal tube, he be fed in the manner prescribed for sick persons on <i>Yom Kippur</i>, i.e., he be fed small quantities of food over an extended period of time.8<i class="footnote"><i>Ḥelkat Ya‘akov</i> sanctions the use of time-released appetite suppressants—provided they do not contain non-kosher ingredients—for reasons which are entirely unexceptionable. Even on the assumption that the pill is a food product, or that any mitigation of the “affliction” of hunger is forbidden, use of such medication is entirely permissible since the pill is taken before the onset of <i>Yom Kippur</i>. As such, the matter is analogous to the hypothetical situation of a person partaking of a sumptuous repast before the fast consisting of foods sufficiently satiating so that no hunger is experienced throughout the entire period of the fast.</i> <i>Teshuvot Yad Shalom</i>, no. 51, dispenses with that requirement as being unnecessary with regard to artificial feeding. 
  Although both <i>Maharsham</i> and <i>Helkat Ya'akov</i> advance two different reasons permitting artificial feeding, there appears to be a significant difference between those reasons in terms of their application. If the prohibition against eating on <i>Yom Kippur</i> applies only when there is "enjoyment by the palate" ingestion of food other than through the mouth would appear to be entirely permissible even for a healthy person. Indeed, <i>Aḥi'ezer</i>, in his discussion of rectal feeding, fails to mention that such procedures are permissible only for a person who is ill. <i>Maharsham</i>, however, certainly does not grant <i>carte blanche</i> for use of such methods, perhaps because, although he disagrees, he may have understood <i>Hatam Sofer</i> as forbidding any form of nourishment which provides "enjoyment by the intestines" even though it provides no "enjoyment by the palate."9<i class="footnote"><i>Maharsham</i> is inaccurately cited in this regard by <i>Ḥelkat Ya‘akov</i>, II, no. 83.</i> <i>Helkat Ya'akov</i>, II, no. 58, also prohibits such procedures for a healthy person.10<i class="footnote">However, <i>Ḥelkat Ya‘akov’</i>s position is less readily understandable since he maintains that there can be no prohibition even according to <i>Ḥatam Sofer</i> in the absence of enjoyment by the palate. The opinion expressed in this responsum is also somewhat inconsistent with his position in <i>Ḥelkat Ya‘akov</i>, II, no. 83.</i> If, however, the procedure is permitted only because it is an "unusual form of eating" such methods would be permitted only to sick persons since "unusual forms of eating" are otherwise forbidden at least by virtue of rabbinic decree and, according to <i>Sha'agat Aryeh</i>, are biblically forbidden on <i>Yom Kippur</i>. 
  Absent the statements of <i>Maharsham</i> and <i>Helkat Ya'akov</i>, it would appear to this writer that use of forbidden foods in feeding through a gastrostomy, jejunostomy or duodenostomy, in colon feeding, hyperalimentation, intravenous feeding or the like are permissible even for a healthy person (if not for the impermissible "wounding" which may be entailed) and that a clear distinction may be drawn between "unusual forms of eating" and such modes of artificial feeding. Forbidden foods which are rendered bitter to the taste by admixture of pungent substances, and food encased in a wrapping or the like are proscribed to healthy persons by virture of rabbinic decree because they are "unusual forms of eating," but modes of eating nonetheless. Artificial forms of feeding which bypass the oral cavity entirely are not forms of "eating" at all and there is no evidence that such forms of ingestion are included in the rabbinic decree.11<i class="footnote">In support of his argument that Resh Lakish recognizes not only “enjoyment by the intestines” but also “enjoyment by the palate” as a <i>sine qua non</i> of the biblical prohibition, <i>Minḥat Ḥinnukh</i> argues that Resh Lakish certainly does not quarrel with the principle that ingesting a forbidden food encased in a wrapper is not biblically forbidden. That argument, as formulated by <i>Minḥat Ḥinnukh</i>, may be rebutted if it is recognized that Resh Lakish may view “enjoyment by the intestines” as constituting the essence of the proscribed act, but only if the pleasure comes as a result of an act of “eating,” regardless of whether or not the palate derives pleasure therefrom. Biblically, ingestion of food encased in a wrapper is not a form of “eating” since it is “unusual” in nature and hence, for that reason, is not included in the biblical prohibition. Introduction of forbidden food directly into the intestines or stomach would thus be entirely permissible according to Resh Lakish because no act of “eating” whatsoever is involved.</i> This appears to have been the position of <i>Maharsham'</i>s interlocutor, as reported in responsum no. 123, who sought to permit artificial feeding on <i>Yom Kippur</i> even according to the opinion of <i>Sha'agat Aryeh</i>, who regards "unusual forms of eating" as biblically forbidden on <i>Yom Kippur</i>, and of R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, X, no. 25, chapter 21. However, ingestion of forbidden foods through a nasogastric tube may perhaps be deemed comparable to encasing the foodstuff in a wrapper and hence rabbinically forbidden to a healthy person. On the other hand, consumption of food encased in a wrapper may be "unusual" but a form of "eating" nonetheless because an act of swallowing is involved. If so, ingestion of food through a nasogastric tube, since it is not at all a form of "eating," would be entirely permissible. 
  There is, however, another consideration which augurs against artificial feeding of nutrients containing non-kosher ingredients unless required for medical reasons. Apart from any possible attendant halakhic prohibitions, the Sages advise that consumption of non-kosher foodstuffs leads to <i>timtum ha-lev</i>, i.e., loss of spiritual sensitivity and development of base character traits. That effect of the consumption of non-kosher products is not at all related to any prohibition which may be associated with partaking of non-kosher foods. Rema, <i>Yoreh De'ah</i> 81:7, advises against employment of a non-Jewish wet-nurse because the gentile woman eats non-kosher foods and hence her milk, which is the product of the food imbibed, will result in <i>timtum ha-lev</i> in the child. Rema indicates that, on the basis of the same consideration, a Jewish mother who must eat non-kosher food for medical reasons should endeavor to find another woman to nurse her child. It might well be assumed that this consideration is limited to the eating of foodstuffs which are intrinsically non-kosher. However, <i>Darkei Teshuvah</i> 81:91, understands the comments of <i>Shulḥan Arukh ha-Rav, Oraḥ Hayyim</i> 343:10, as stating that the selfsame consideration pertains to the eating of foods which are forbidden only at certain times, e.g., <i>ḥamez</i> on Passover. It would then follow that artificial ingestion of any food on <i>Yom Kippur</i> is spiritually and morally deleterious as well. However, <i>Helkat Ya'akov</i>, II, no. 40, notes that the connection between forbidden foods and the development of negative character traits is mystical rather than scientific in nature and hence it may be the case that the ill effects are engendered only when forbidden foods are ingested orally. 
  It is, however, incontrovertible that no punishment is incurred upon utilization of intravenous feeding on <i>Yom Kippur</i> and indeed, as noted earlier, there is strong reason to assume that use of such a procedure is entirely permissible. Hence the question arises with regard to whether a patient who is not permitted to fast on <i>Yom Kippur</i> ought to avail himself of intravenous feeding. The rabbinic authorities who discuss this question offer a number of reasons in explaining why a patient is not required to do so.12<i class="footnote">Cf., however, the conflicting opinion of R. Eleazar Kahanow, <i>Ha-Metivta</i>, Sivan 5746, p. 79.</i>
  1. R. Dov Berish Weidenfeld, <i>Teshuvot Dovev Meisharim</i>, III, no. 88, confesses that he is greatly perplexed with regard to this matter but advises that intravenous feeding should not be utilized because it may cause pain and distress to the patient and may prove to be hazardous to his health. This view is endorsed by R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, X, no. 25, chapter 21. Much earlier, <i>Maharsham</i>, I, no. 123, made a similar comment with regard to the form of artificial feeding which he described. <i>Maharsham</i>, however, based his reservation upon the assumption that food fed to the patient artificially is not properly digested and hence, since it does not provide proper nourishment, results in endangerment of the patient's life. 
  2. R. Shlomoh Zalman Auerbach, in an article which appeared in the Sivan-Tammuz 5731 issue of <i>Moriah</i> and which was reprinted in <i>Torah she-be-al Peh</i>, volume XIV (5732), advances an intriguing thesis in the course of a lengthy discussion of limitations upon the obligation to diminish the severity of infractions when strictures of Jewish law are suspended in face of danger to life. It is Rabbi Auerbach's contention that although when two alternative courses of action are available the one involving the less severe infraction must be pursued, nevertheless, in rendering life-sustaining aid to another, one is not required to expend funds in order to devise a method involving a less severe infraction. Thus, for example, when it is necessary to transport a patient to a hospital on <i>Shabbat</i>, a Jew who has his own automobile readily available need not hire a non-Jewish taxi in order to avoid the need to drive his own car.13<i class="footnote">This view is challenged by R. Pinchas Epstein, the late <i>Rosh Bet Din</i> of the <i>Edah ha-Ḥaredit</i> of Jerusalem. See <i>Contemporary Halakhic Problems</i>, I, 131.</i> Nor in preserving his own life, argues Rabbi Auerbach, is an individual obliged to incur the expense entailed in a procedure which he would not seek to employ on a weekday. Rabbi Auerbach avers that it is for this reason that a patient requiring food on <i>Yom Kippur</i> need not avail himself of intravenous feeding, i.e., he need not incur the additional expense involved in order to avoid the prohibition against eating on <i>Yom Kippur</i>, since intravenous feeding is a procedure of which he would not avail himself on a weekday. 
  3. R. Moshe Sternbuch, <i>Mo'adim u-Zemanim</i>, I, no. 60, asserts that there is no obligation for a patient to obtain nourishment in an unnatural manner on <i>Yom Kippur. Mo'adim u-Zemanim</i> distinguishes between Rema's ruling that forbidden acts must, when possible, be performed by a non-Jew or in an unusual manner and the question under discussion with the comment that there is never an obligation to modify the net result of the action. <i>Mo'adim u-Zemanim</i> asserts that the obligation to mitigate the severity of an infraction is limited to modification of the mode in which the act is performed. In the <i>Shabbat</i> situation, the net result is the same regardless of whether the act is performed by a Jew or by a gentile, or whether performed by the right hand or the left. However, requiring a patient, for example, to eat bitter food instead of his regular fare would constitute a modification of the treatment of the patient since it involves an unnatural or unusual form of nutrition. The same is true <i>a fortiori</i> with regard to substitution of intravenous feeding for conventional nourishment. 
  <i>Mo'adim u-Zemanim</i>'s view is contradicted by <i>Binyan Ẓion</i>, no. 35. <i>Binyan Ẓion</i> requires a patient to eat <i>she-lo ke-derekh akhilah</i> on <i>Yom Kippur</i> when possible. <i>Binyan Ẓion</i> demonstrates that eating uncooked fowl, since the meat is soft, is a "normal" form of eating, whereas eating the raw meat of larger animals is "unnatural." Accordingly, <i>Binyan Ẓion</i> advises that, when medically advisable, a patient requiring meat on <i>Yom Kippur</i> should eat raw beef. 
  4. R. Moses Feinstein, <i>Iggerot Mosheh, Oraḥ Hayyim</i>, III, no. 90, rules that use of intravenous feeding in order to avoid the need for breaking the fast is not only unnecessary but is "perhaps" forbidden as well. The obligation with regard to the treatment of illness derived from the biblical verse "and he shall surely heal" (Exodus 21:20), argues <i>Iggerot Mosheh</i>, requires use of medication only when designed to effect a cure, but not when designed for an extraneous purpose such as enabling a patient to fast. That argument appears, to this writer, to be a <i>non sequitur</i>. It is quite true that the verse "and he shall surely heal" does not mandate administration of medication other than for the purpose of effecting a cure. Yet it is entirely possible that the use of medicaments is independently mandated on other grounds when the alternative to their use involves a violation of biblical law. Use of medication under such circumstances would be mandated, not in order to enable the patient to fulfill the positive obligation of fasting, but on the principle that biblical prohibitions are not suspended for the purpose of saving a life when the endangered life can be saved in some other manner.14<i class="footnote">See also <i>Iggerot Moshe, Oraḥ Ḥayyim</i>, IV, no. 121. In that responsum Rabbi Feinstein asserts that “it stands to reason (<i>mistaber</i>)” that there is no obligation to ulitize medications having no therapeutic value solely in order to be able to fast.</i>
  <i>Iggerot Mosheh</i> further argues that a patient need take no measures prior to the onset of <i>Yom Kippur</i> in order to be able to fast on that day.
  As proof of this point Rabbi Feinstein points to the fact that eating on the day preceding <i>Yom Kippur</i> is a positive <i>mizvah</i>. Absent such <i>mizvah</i>, he argues, there would be no obligation to assure one's ability to fast on <i>Yom Kippur</i> without endangering one's life by eating prior to the fast. Hence, he concludes, a patient need not have an intravenous line inserted prior to <i>Yom Kippur</i> in order to be enabled to fast. This line of reasoning is subject to question in light of the talmudic dictum, <i>Berakhot</i> 8b, "Whoever eats and drinks on the ninth [of Tishri], Scripture accounts it to him as if he had fasted on [both] the ninth and tenth." Establishment of a <i>mizvah</i> for eating on the day preceeding <i>Yom Kippur</i> serves to assure enhanced reward, and also renders every act of food consumption a <i>mizvah</i>, even if a person would have been required to eat on that day for other reasons. 
  One may also question why Rabbi Feinstein ignores the fact that it is entirely possible to introduce an intravenous line on <i>Yom Kippur</i> itself. Although the insertion of an intravenous line may involve an act which is forbidden on <i>Yom Kippur</i>, that act is presumably less severe an infraction than repeated acts of eating. This omission is noted by Rabbi Feinstein in <i>Iggerot Mosheh, Oraḥ Hayyim</i>, IV, no. 101, sec. 3. Rabbi Feinstein notes that his earlier discussion assumed a situation in which the patient may eat less than a <i>shi'ur</i> at any one time, i.e., less than the minimal amount for which punishment is incurred. Repeated acts of eating small quantities of food are, even cumulatively, less serious an infraction of <i>Yom Kippur</i> prohibitions than the single act of "wounding" involved in a venipuncture. Rabbi Feinstein, however, seems to disregard the fact that the intravenous line may be inserted by a non-Jewish physician, thereby completely removing the act from the category of a biblical prohibition. 
  <i>Iggerot Mosheh</i> further argues that intravenous feeding, when not medically indicated, may actually be prohibited. <i>Tosafot, Baba Kamma</i> 85a, remarks that were it not for an explicit biblical verse permitting all forms of healing, it would be forbidden to treat physiological maladies of spontaneous origin. Since such illness is brought upon man by providence, absent divine license to do so, human intervention in the form of medical therapy "would appear to thwart the decree of the King." Accordingly, it may be the case, argues <i>Iggerot Mosheh</i>, that the Torah permits the use of medicine even though such use does indeed "thwart the decree of the King" solely for the purpose of effecting a cure and not in order to achieve other ends. Therefore, if it is the "decree of the King" that a person not be able to fast by reason of illness, man has no dispensation to utilize unnatural means in order to thwart that decree. 
  Rabbi Feinstein further contends that insertion of an intravenous line, if not mandated either by medical or halakhic reasons, may be forbidden as an illicit form of "wounding." That argument, however, seems open to question. Granting that insertion of an intravenous line under such circumstances does constitute a forbidden form of wounding, that infraction is less severe in nature than violation of the prohibition against eating on <i>Yom Kippur</i> and hence should be preferred over the latter. Moreover, this argument is inconsistent with Rabbi Feinstein's own position as recorded in an article which appears in <i>Halakhah u-Refu'ah</i>, I (Jerusalem, 5740), 323-27. Following the opinion of Rambam, <i>Hilkhot Hovel u-Mazik</i> 5:1, Rabbi Feinstein there maintains that only wanton infliction of damage upon the body constitutes a forbidden form of "wounding."
  Rabbi Feinstein also contends, as do <i>Dovev Meisharim</i> and <i>Ẓiz Eli'ezer</i>, that intravenous feeding may in some manner be injurious to the health of the patient. In <i>Iggerot Mosheh, Oraḥ Hayyim</i>, IV, no. 101, sec. 3, he asserts that assurances of physicians that there are no ill effects are not to be relied upon. He further argues that intravenous feeding is not as satisfying to the patient as normal eating and hence should not be administered to a weakened patient unless medically required. 
  In an entirely different context, Rabbi Feinstein, <i>Iggerot Mosheh, Yoreh De'ah</i>, II, no. 74, asserts that there is no obligation whatsoever to utilize unnatural means (<i>taḥbulot</i>) in order to avoid violation of <i>Shabbat</i> restrictions. This argument is similar to that advanced by <i>Mo'adim u-Zemanim</i> and would, <i>mutatis mutandis</i>, presumably apply to the use of intravenous feeding on <i>Yom Kippur</i> as well. 
  
  Chapter VII Prostate Surgery
  
  <i>Come and behold! There is no affliction in the world for which there is no therapy</i>.
  TANHUMA, NOAH 8
  The prostate is a gland which completely encircles the neck of the bladder and the urethra in the male. Enlargement of the prostate and resultant encroachment and partial obstruction of the urethra is a common occurrence, especially after middle age. Partial occlusion of the urethra frequently impedes urination, causes pain and retention of urine and, if untreated, may result in infection of the bladder and kidneys and, eventually, even renal failure. This condition can be corrected surgically by means of a transurethral or suprapubic (i.e., abdominal) prostatectomy involving excision of part or all of the prostate gland. One complication which may result from such surgery is postoperative epididymitis, an infection or inflammation of the epididymis which is an oblong tubular body resting upon and beside the posterior surface of the testis. Postoperative epididymitis following transurethral prostatectomy has a reported incidence of 0 to 13.5 per cent.1<i class="footnote">See J. Melchior <i>et al</i>, “Transurethral Prostatectomy and Epididymitis,” <i>Journal of Urology</i>, CXII (1974), 647. An incidence of 20% reported in <i>Oẓar ha-Poskim</i>, IX, 257, note 1, is undoubtedly an exaggeration as is the report of an incidence of 33% cited by R. Moses Feinstein, <i>Iggerot Mosheh, Even ha-Ezer</i>, IV, no. 29, sec. 2.</i> In the 1920s, a urologist, Dr. Edwin P. Alyea, recommended that vasoligation, i.e., the binding or tying off of the vas deferens, be performed routinely in conjunction with every prostatectomy in order to prevent bacteria present in the prostate from reaching the epididymis. This procedure, he claimed, markedly reduces the incidence of infection.2<i class="footnote">See Edwin P. Alyea, “Vaso-ligation: A Prevention of Epididymitis before and after Prostatectomy,” <i>Journal of Urology</i>, XIX (1928), 65-80.</i> Subsequently, vasectomy, or removal of a segment of the vas deferens, became the accepted means of achieving this end.3<i class="footnote">See B. Abeshouse and S. Lerman, “Vasectomy in the Prevention of Epididymitis following Prostatic Surgery,” <i>Urologic and Cutaneous Review</i>, LIV (1950), 385-91.</i>
  I. The Halakhic Problem and the Responsa Literature
  From the perspective of Jewish law, severance of the vas deferens poses a serious problem with regard to the permissibility of resumption of marital relations. The verse "<i>Lo yavo pezu'a daka u-kerut shafkhah be-kehal ha-Shem</i>—He that hath wounded testicles or severed membrum shall not enter into the assembly of God" (Deuteronomy 23:2) constitutes a negative commandment prohibiting a person afflicted in this manner from engaging in sexual intercourse. The biblical terms '<i>'pezu'a daka"</i> and "<i>kerut shafkhah"</i> employed in formulating this prohibition are understood by the Gemara as denoting a mauled or severed membrum, testicle, or vas deferens. Thus <i>Yevamot</i> 75b declares: "Raba stated: 'Wounded' applies to all, 'crushed' applies to all and 'severed' applies to all. 'Wounded' applies to all, whether the membrum, the testes or the cords of the testes were wounded. 'Crushed' applies to all, whether the membrum, the testes or the cords of the testes were crushed. 'Severed' applies to all, whether the membrum, the testes or the cords of the testes were severed." Moreover, seclusion (<i>yiḥud</i>) of a male with a woman with whom intercourse is prohibited is forbidden even if the woman is his lawfully wedded wife (other than with his wife who is a <i>niddah</i> with whom intercourse is permitted subsequent to her immersion in a <i>mikveh)</i>. Moreover, a <i>kohen</i> is forbidden to marry a woman who has consorted with a man who has been maimed in this manner.4<i class="footnote">See Rambam, <i>Hilkhot Issurei Bi‘ah</i> 18:3.</i>
  Halakhic questions associated with prostate surgery have, of late, become the subject of much discussion, particularly among Israeli scholars. The halakhic issues, which have now been reopened, were first examined decades ago by a number of rabbinic authorities. Of primary significance are the comments of <i>Hazon Ish, Even ha-Ezer</i> 12:7. A detailed analysis of these problems is presented by R. Ya'akov Breisch, <i>Helkat Ya'akov</i>, II, no. 22, and by R. Iser Yehudah Unterman, <i>Ozar ha-Poskim</i>, I (3rd edition, 5711), <i>he'arot</i>, pp. 326-29. The matter is also addressed by R. Yitzchak Ya'akov Weisz, <i>Teshuvot Minḥat Yitzḥak</i>, II, no. 123, sec. 6 and III, no. 97; R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, X, no. 25, chap. 24 and XIV, no. 94; and by R. Isaac Liebes, <i>Teshuvot Bet Avi</i>, IV, <i>Even ha-Ezer</i>, nos. 143-49. Responsa on this subject by R. Zevi Pesach Frank, R. Ovadiah Hedaya and R. Moshe Wasserman appear in the latter's <i>She'ilat Mosheh, Even ha-Ezer</i>, nos. 20-22. A brief item dealing with this topic is included by R. Moshe Stern in his <i>Teshuvot Be'er Mosheh</i>, VI, no. 132. Contributions appearing in the periodical literature include articles by R. Nisan Telushkin, <i>Ha-Pardes</i>, Iyar 5715; R. Yosef Eliyahu Henkin, <i>Ha-Pardes</i>, Tammuz 5715; Rabbi Dr. Israel Baruch Ness, <i>Ha-Pardes</i>, Nisan 5716 and Heshvan 5731; R. Baruch Mordecai Birg, <i>No'am</i>, I (5718); R. Menachem Mendel Schneerson, <i>Ha-Ma'or</i>, Tammuz 5725; (reprinted in <i>Ozar ha-Poskim</i>, IX, 259),5<i class="footnote">See also the brief comments of R. Menachem Mendel Schneerson, published in his <i>Likkutei Siḥot</i>, XII, 212 and XVII, 503-504.</i> R. Ephraim Yolles, <i>Ha-Ma'or</i>, Tevet 5731; and R. Moses Feinstein, <i>Le-Torah ve-Hora'ah</i>, no. 5 (<i>Shevu'ot</i> 5735). Rabbi Feinstein's responsum is reprinted in <i>Ozrot Yerushalayim</i>, no. 297 (5742), and in <i>Iggerot Mosheh, Even ha-Ezer</i>, IV, no. 28. A lengthier discussion by Rabbi Feinstein was published in <i>Sefer Kavod ha-Rav</i> (New York, 5744) and is included in <i>Iggerot Mosheh, Even ha-Ezer</i>, IV, no. 29. Rabbi Weisz, <i>Teshuvot Minḥat Yizḥak</i>, II, secs. 12-14, also addresses the question of whether or not a patient who has undergone surgery of this nature, but is unaware of the halakhic ramifications, need be informed of a possible prohibition against resuming marital relations. A precis of some of this material appears as an addendum to <i>Ozar ha-Poskim</i>, IX, 257-58. 
  In the opinion of virtually all of these writers, performance of a prostatectomy does not, in and of itself, create a situation in which the patient is prohibited from engaging in sexual intercourse. The earlier-cited statement recorded in <i>Yevamot</i> 75b limits the prohibition by including only persons who have been injured in one of three organs: the membrum, the testes or the "cords of the testes." Since the prostate is not enumerated among the organs whose excision or injury results in placing the victim within the ambit of the prohibition forbidding him to "enter into the assembly of God," removal of the prostate gland does not seem to pose a halakhic problem. The problem arises from performance of an accompanying vasectomy as a prophylactic measure designed to prevent occurrence of epididymitis. Severance of the vas deferens would appear to preclude subsequent intercourse since, ostensibly, it involves cutting the "cords of the testes."
  II. "Cords of the Testes " as Defined by Rashi
  The earliest authority to render a permissive ruling with regard to this matter is <i>Hazon Ish</i>. The pivotal issue is identification of the anatomical structure referred to by the Gemara as the "cords of the testes." Rashi defines the "cords of the testes" as those cords "from which the testes are suspended in the scrotum." It is virtually axiomatic that Rashi, in commenting upon the text of the Talmud, does not engage in surplusage. His comments are designed either: (a) to facilitate comprehension of the plain meaning of the text; or (b) to provide halakhic insights which may not be apparent to the student. The comment in question appears to be superfluous since the meaning of the words "cords of the testes" seems to be entirely clear. Rashi's contribution, argues <i>Hazon Ish</i>, lies in supplying the phrase "within the scrotum" which is absent in the text of the Gemara. In doing so, maintains <i>Hazon Ish</i>, Rashi intended to convey a halakhic point, viz., that the halakhic incapacity under discussion is limited to a situation in which the portion of the cord which is injured lies <i>within the scrotum</i>, to the exclusion of an injury to the portion of the "cord of the testes" which lies within the abdomen. Phrased somewhat differently, only damage to the external genital organs renders the individual a <i>pezu'a daka</i>; injury to an internal genital organ or to a portion of an organ which is within the body carries with it no halakhic disability. Hence, concludes <i>Hazon Ish</i>, if the vas deferens is severed within the body itself no halakhic complications arise.6<i class="footnote"><i>Ḥelkat Ya‘akov, Ẓiẓ Eli‘ezer</i> and Rabbi Feinstein find support for this position by noting that terminology identical to that of Rashi is utilized by <i>Tur ShulḤan Arukh, Even Ha-Ezer</i>. In point of fact, <i>Tur</i> defines “<i>Ḥutei beiẓim</i>-cords of the testes” simply as “the cords from which the testes are suspended”; the crucial phrase “within the scrotum” does not appear in <i>Tur’</i>s formulation. Quite to the contrary, it would appear to this writer that <i>Tur</i> did not understand Rashi as limiting the <i>ḥutei beiẓim</i> solely to the section within the scrotum.See also Rambam, <i>Hilkhot Issurei Bi‘ah</i> 16:3, as discussed by Rabbi Issac Liebes, <i>Teshuvot Bet Avi</i>, IV, <i>Even ha-Ezer</i>, no. 149, sec. 5, and below in section III of this chapter. Support for the position of <i>Ḥazon Ish</i> is, however, found in the commentary of <i>Kasa de-Harsana</i> on <i>Teshuvot Besamim Rosh</i>, no. 340.</i>
  The editors of <i>Ozar ha-Poskim</i>, I, 327, note 3, cite the statement of an Israeli urologist, a certain Dr. Shapiro, who reports that <i>Hazon Ish</i> advised him to sever the vas deferens routinely when performing a prostatectomy in order to avoid possible medical complications. The physician further reported that <i>Hazon Ish</i> was entirely convinced of the absence of any halakhic prohibition and hence felt that there was no need to disclose the performance of such procedure to the patient. Interestingly, <i>Hazon Ish</i>'s biographers, <i>Pe'er ha-Dor</i> (Bnei Brak, 5733), IV, 142-43, write that, when informed by a urologist that he had successfully performed approximately one hundred prostatectomies without an accompanying vasectomy and that none of his patients had suffered from epididymitis, <i>Hazon Ish</i> responded that the procedure should be performed nevertheless. 
  Apart from <i>Hazon Ish'</i>s analysis, it appears to this writer that Rashi's comment lends itself to two other possible interpretations. The first interpretation is entirely textual and devoid of any halakhic ramification. To be sure, the student of the talmudic text need not be informed that the testes are located in the scrotum. Yet, the anatomically unsophisticated reader may be unaware that the testes are suspended by cords; he may well be under the erroneous belief that the testes fall freely within the scrotum. Ignorant of the existence of spermatic cords, he might well be puzzled by the term "cords of the testes." Hence Rashi may have found it necessary to supply an elementary anatomical fact, viz., that the testes are <i>suspended</i> rather than free-floating in the scrotum and, accordingly, Rashi remarks that the phrase "cords of the testes" denotes the spermatic cords from which the testes are suspended. According to this analysis, Rashi intends merely to identify the structure without limiting the reference to the portion within the scrotum; hence the entire length of the spermatic cord including that portion of the vas deferens which lies within the body is also included in this reference. Alternatively, Rashi may well be understood as obviating an erroneous halakhic interpretation born of anatomical sophistication rather than the opposite. Along and beside the posterior surface of the testis lies a small, oblong body consisting of a convoluted tube known as the epididymis. If stretched out to its full length, the epididymis would be some thirteen to twenty feet long. One might well fall into the error of identifying the "cords of the testes" as the epididymis rather than as the spermatic cord.7<i class="footnote">As will be noted later, one physician (erroneously, in this writer’s view) ascribes such an opinion to Rambam.</i> Hence, Rashi points out that in enumerating the "cords of the testes" among the organs whose injury is associated with halakhic restrictions, the Gemara's reference is to the spermatic cords rather than to the epididymis. The latter, in halakhic nomenclature, is deemed to be part of the testes themselves. According to either interpretation there is no reason to assume that Rashi intends to exclude the portion of the cord which extends into the body. 
  This caveat nothwithstanding, <i>Hazon Ish</i>'s interpretation of Rashi is followed by virtually all subsequent authorities, including <i>Helkat Ya'akov</i> and R. Moses Feinstein. It should also be noted that a similar position was earlier espoused by R. Naphtali Zevi Yehuda Berlin in his <i>Ha'amek She'alah</i> in exposition of the comments of <i>She'iltot, Parshat Ki Tezei</i>, no. 152. Both Rabbi Weisz and Rabbi Waldenberg also cite the comment of <i>Kasa de-Harsana</i> appended to <i>Teshuvot Besamim Rosh</i>, no. 340, to the effect that "perhaps" the prohibition does not encompass an invididual whose internal procreative organs are maimed. 
  Rabbi Telushkin, although he does not base his argument upon the earlier-cited comment of Rashi, contends that, at least for some authorities, the restriction against intercourse is limited to instances in which external genital organs have been mutilated. He notes the juxtaposition of the prohibition against causing sterility which is derived from Leviticus 22:24 and the listing of the physical defects which disqualify a priest from performing the sacrificial rituals recorded in the same scriptual section. The latter are limited to external blemishes. The prohibition against mutilating sexual organs, suggests Rabbi Telushkin, is recorded subsequent to the proscription dealing with priestly blemishes as an indication that the prohibition against mutilation, and the pursuant prohibition against sexual intercourse, are limited to mutilation of external organs.8<i class="footnote">In point of fact, the regulation governing disqualification of priests suffering from physical defects is recorded in Leviticus 21:16-23. Rabbi Telushkin may have expressed himself unfelicitously but actually may have intended to note the juxtaposition of Leviticus 22:24 with the immediately preceding regulations disqualifying animals marred by certain physical blemishes from being brought as sacrificial offerings. The latter regulations are found in Leviticus 22:19-23.</i>
  A comparison of Rabbi Telushkin's argument and the argument based upon Rashi's use of the term "within the scrotum" may yield a significant halakhic difference. It should be noted that the spermatic cord does not ascend directly from the scrotum into the body cavity. Instead, it passes under the skin in the area of the groin and travels horizontally for several inches before entering the body itself. According to <i>Hazon Ish's</i> interpretation of Rashi, severing the vas deferens in this area would not disqualify the patient from engaging in intercourse since the injury quite evidently does not occur "within the scrotum." Dr. Ness, <i>Ha-Pardes</i>, Nisan 5715, tentatively suggests that, according to Rabbi Telushkin's argument, the opposite conclusion may be drawn. Nevertheless, it may be argued that, according to Rabbi Telushkin's thesis, severance of the vas deferens in this area should not be deemed to have occurred in an "exposed" area (<i>be-galuy</i>) since the effect of the procedure can neither be seen nor detected by means of external inspection. 
  III. "Cords of the Testes" as Defined by Rambam
  However, Rambam, <i>Hilkhot Issurei Bi'ah</i> 16:33, does not render the term <i>"ḥutei ha-beizim"</i> employed in <i>Yevamot</i> 75b, as "cords of the testes" in accordance with the literal meaning of the phrase. Instead, Rambam speaks of "the ducts in which the semen ripens which are called <i>ḥutei beizim</i>." There is no language in Rambam's formulation which would indicate that only external portions of the reproductive organs are included in this definition. Indeed, the terminology employed by Rambam would readily accommodate the view that the term "<i>ḥutei beizim"</i> denotes not only the vas deferens but all the "ducts" through which the various components of the semen flow, including the ejaculatory duct which arises at the junction of the ampulla (which is an extension of the vas deferens) and the seminal vesicle. Nevertheless, no one (with the exception of Rabbi Birg, see especially p. 259) has argued that, according to Rambam, the seminal vesicle and the prostate gland should also be considered to be among "the ducts in which the semen rippens" even though components of the seminal fluid are contributed by each of these organs. Presumably, this is because the term "<i>ḥutei beizim,"</i> defined by Rambam as "the ducts in which the semen ripens," denotes only the structures through which the sperm passes after being produced in the testes. The sperm "ripens" or "matures" as a result of combination with seminal fluid produced in the seminal vesicle and the prostate. The resultant semen is, in its entirety, known as <i>shikhvat zera</i>. However, the secretions of those organs prior to their excretion into the ejaculatory duct are not subsumed within the halakhic category of <i>shikhvat zera</i> or "semen." Hence it may be assumed that in defining <i>ḥutei beizim</i> as "the ducts in which semen ripens" Rambam sought to denote only the structures through which the sperm itself and the sperm-bearing seminal fluid pass. 
  A definitive, permissive ruling with regard to the question at hand would be most unlikely were it to be accepted that severance of the vas deferens renders the prostate patient a <i>kerut shafkhah</i> according to Rambam. A ruling contrary to Rambam's position would not be anticipated, particularly in view of the fact that Rambam's definition is adopted by <i>Shulḥan Arukh, Even ha-Ezer</i> 5:2.9<i class="footnote">Rabbi Feinstein’s citation of <i>Even ha-Ezer</i> 5:2 which includes a reference to Rashi and a citation of Rashi’s phraseology is most puzzling since not only does such a statement not appear in <i>Shulḥan Arukh</i> but, on the contrary, <i>Shulḥan Arukh</i> adopts Rambam’s definition.</i> Accordingly, the chief concern of writers on this topic has been to demonstrate that Rambam is in agreement with Rashi in finding that severence or maiming of internal organs does not render the patient a <i>kerut shafkhah</i>. In doing so they rely heavily upon an <i>argumentum ad silentium</i>, viz., both Rashi and Rambam are cited and commented upon by innumerable early and latter-day authorities none of whom remark upon a disagreement or contradiction between Rashi and Rambam with regard to the definition of the term <i>ḥutei beizim</i>. Nevertheless, one eminent authority, R. David Friedman of Karlin, <i>She'ilat David</i> (appended to his <i>Piskei Halakhot</i>, vol. I), no. 1, does posit a controversy between Rashi and Rambam.10<i class="footnote"><i>She‘ilat David</i> presumably understood Rashi as expressing the position ascribed to him by <i>Ḥazon Ish</i>.</i>
  <i>Helkat Ya'akov</i> cites an anonymous physician—described as non-observant but conversant with rabbinic sources—who interpreted the phrase "ducts in which semen ripens" as referring solely to the epididymis. This interpretation was prompted by consideration of scientific realia. The sperm do indeed undergo a process of development and maturity or "ripening" in the epididymis. Fluids secreted by other organs are added thereafter, but the sperm themselves undergo no further change. Hence this anonymous physician felt that any reference by Rambam to ducts in which "ripening" takes place must be understood as denoting the epididymis. Use of the term "duct" in describing the epididymis presents no difficulty since, as noted earlier, the epididymis is indeed, structurally, a convoluted tube. Despite its scientific cogency, it is unlikely that this interpretation reflects Rambam's intent. Rabbinic literature gives no evidence of a distinction between sperm themselves and the seminal fluid. Thus, for example, while latter-day responsa discuss whether or not the prohibition against "destroying the seed" applies to "seed which does not procreate" (<i>zera she-eino molid</i>) no authority seeks to restrict the prohibition to "destruction" of sperm or even to sperm-bearing semen specifically. Hence Rambam's use of the term <i>shikhvat zera</i> undoubtedly denotes semen in its entirety rather than only the sperm; semen in its totality certainly does "mature" or "ripen" in structures other than the testes and epididymis. Moreover, the Gemara, <i>Yevamot</i> 76a, declares that semen which passes through the urethra does not "ripen." This statement seemingly indicates recognition of a process of maturation or a development which takes place beyond the epididymis. <i>Helkat Ya'akov</i> attempts to resolve this difficulty by declaring that <i>Yevamot</i> 76a speaks of "ripening" only in the sense of making the act of ejaculation possible and adds that only mutilation of the genitalia can render a person a <i>pezu'a daka</i> on that account. Neurological disorders which render ejaculation impossible certainly do not render the victim a <i>pezu'a daka</i>. Similarly, argues <i>Helkat Ya'akov</i>, mutilation of internal sexual organs with resultant inability to experience ejaculation does not render the patient a <i>pezu'a daka</i>. 
  In a somewhat similar vein Rabbi Feinstein argues that Rambam's reference to "ducts in which semen ripens" can denote only the spermatic cords and not the internal structures since, he asserts, semen "ripens" only within the spermatic cords but not within the internal procreative organs. Rabbi Feinstein is cognizant of the difficulty posed by <i>Yevamot</i> 76a which speaks of "ripening" outside of the scrotum. This difficulty is dismissed by Rabbi Feinstein since, in his opinion, the anomaly described in <i>Yevamot</i> 76a occurred within the membrum and hence was external to the body itself. Rabbi Telushkin, on the other hand, assumes that the injury described in <i>Yevamot</i> 76a was internal. Nevertheless, in his permissive ruling, Rabbi Telushkin relies upon the position of R. Eliezer of Metz, author of <i>Sefer Yere'im</i>, who understands the Gemara as declaring, not that a person afflicted in this manner may not legitimately contract marriage, but that any putative children must of necessity be regarded as illegitimate because such injury renders the victim incapable of siring children. Rabbi Telushkin argues that <i>Sefer Yere'im</i> rejects the usual interpretation precisely because that authority is of the opinion that the maiming of internal organs does not render the victim a <i>pezu'a daka</i>. 
  Rabbi Feinstein notes, however, that it is unlikely that "ripening" of the sperm ceases while the sperm traverses the internal procreative organs only for the "ripening" process to commence anew in the membrum. Accordingly, he remarks—as did <i>Helkat Ya'akov</i>—that the sperm themselves become fully mature and fertile in the scrotum with no further "ripening" taking place internally. In his opinion, the "ripening" described in <i>Yevamot</i> 76a refers to a form of development necessary, not to assure fertility of the sperm, but to make possible the act of ejaculation. 
  The difficulty with Rabbi Feinstein's explanation is that it is contrafactual on three counts: (1) no development or maturation takes place within the spermatic cords; (2) production of seminal fluid which makes ejaculation possible does take place within the body with various components of the seminal fluid entering the vas deferens and the ejaculatory duct as they traverse the body internally; and (3) no further components of the seminal fluid are generated within the membrum, nor does any other physiological process occur in the membrum which can even remotely be termed maturation, development or ripening. 
  <i>Helkat Ya'akov</i> finds support for the view that Rambam does not intend to disagree with the position espoused by Rashi in Rambam's incorporation of the phrase "which are termed <i>ḥutei beizim."</i> According to <i>Helkat Ya'akov</i>, this phrase is to be understood as constituting words of limitation, i.e., only mutilation of those ducts in which the semen "ripens" and which are also known as "cords of the testes" disqualifies the individual from engaging in marital relations. Since it is self-evident that the "cords of the testes" are located wholly within the scrotum, argues <i>Helkat Ya'akov</i>, it may be concluded that Rambam is in agreement with Rashi's position. 
  It should, however, be noted that in his <i>Commentary on the Mishnah, Yevamot</i> 8:2, Rambam employs somewhat different terminology. There he writes: "It is necessary for you to know that when the membrum is wounded or, similarly, [when] the cords of the testes [are wounded] or the testes are severed or the membrum is perforated or the testes are perforated, or, <i>in general</i>, [<i>when</i>] <i>any malady arises in the organs of the semen</i> of a nature which natural science decrees that as a result [the victim] will not emit semen, he is disqualified." Rambam's broad reference to the "organs of the semen" (<i>klei ha-zera</i>) would certainly seem to include more than simply "the cords of the testes," i.e., the spermatic cords. Minimally, this phrase would appear to include the vas deferens and, arguably, the prostate itself, since removal of the prostate, although it does not impede erection, nevertheless usually makes ejaculation of semen impossible. Similar language is used by Rambam in his <i>Sefer ha-Mizvot, mizvot la-ta'aseh</i>, no. 360. Curiously, <i>Helkat Ya'akov</i> cites the comment found in the <i>Commentary on the Mishnah</i> without noting that it apparently contradicts his thesis. Perhaps <i>Helkat Ya'akov</i> assumed that the term "organs of the semen" is used only in apposition to the antecedent phrase "membrum or cords of the testes."
  At least one prominent authority did find that severance of the vas deferens engenders a halakhic disability. Dr. Ness, <i>Ha-Pardes</i>, Heshvan 5731, reports an oral communication alleging that the renowned R. Shimon Shkop of Grodno ruled that patients who have undergone prostate surgery may not subsequently engage in intercourse. Presumably, this ruling applies only to patients in whom the vas deferens has been severed. 
  IV. At the "Hands of Heaven"
  Rambam's formulation of an entirely different provision of Jewish law may have the effect of obviating any problem arising from his definition of <i>ḥutei beizim</i>. According to Rambam, <i>Hilkhot Issurei Bi'ah</i> 16:9, damage sustained by any of the organs in question as a result of illness or physiological disorder, as distinct from traumatic injury, does not disqualify the victim from engaging in intercourse. This is so, according to many commentators on Rambam's position, even if the diseased organ is excised surgically.11<i class="footnote">See <i>Yam shel Shlomoh, Yevamot</i> 8:9; <i>Teshuvot Ḥatam Sofer, Even ha-Ezer</i>, I, no. 17; and <i>Oẓar ha-Poskim</i> 5:56.</i> Rabbi Telushkin notes that a number of latter-day authorities cited by <i>Pitḥei Teshuvah, Even ha-Ezer</i> 5:7, understand Rambam's ruling as encompassing even situations in which an organ has been excised merely because of incipient disease. According to these authorities' understanding of Rambam, even though the organ is still functional at the time of its removal, the fact that it will become dysfunctional as a result of disease renders the injury one that is encompassed in the class of injuries sustained "at the hands of heaven" rather than "at the hands of man."12<i class="footnote">See, however, <i>Teshuvot Maharsham</i>, III, no. 95; R. Isser Zalman Meltzer, <i>Oẓar ha-Poskim</i>, I, addendum, p. 7; as well as other conflicting sources cited by Rabbi Birg.</i> Accordingly, Rabbi Telushkin argues that, according to Rambam, no problem results in performing a vasectomy upon patients suffering from a malignancy of the prostate gland since the malignancy, if untreated, would spread to the vas deferens as well. In actuality, however, malignancies metatastize either through the lymphatics or through the blood stream; hence malignancies of the prostate spread to other organs, but very rarely to the vas deferens despite the proximity of the latter. 
  Rabbi Telushkin further states that even when the prostate is removed solely because of partial obstruction or occlusion of the urethra by the enlarged prostate, the patient suffers no halakhic disability as a result of severance of the vas deferens. Failure to perform the procedure, asserts Rabbi Telushkin, will result in disease and ultimate destruction of the procreative organs. Hence the patient, according to Rambam, must be deemed to have been afflicted "at the hands of heaven" and, in accordance with Rambam's view, is not forbidden to engage in intercourse even if the organs are removed or severed surgically. A similar view is expressed by R. Zevi Pesach Frank in a brief responsum published in R. Moshe Wasserman's <i>She'ilat Moseheh, Even ha-Ezer</i>, no. 22. Rabbi Henkin accepts this argument but points out that a prostatectomy performed in order to alleviate problems caused by incontinence, rather than by reason of urine retention, does not fall into this classification. Rabbi Henkin flatly forbids performance of a vasectomy when the prostate procedure is designed to prevent the embarrassment and inconvenience of incontinence and expresses grave reservations with regard to the permissibility of marital relations by those patients subsequent to such procedure.13<i class="footnote">In actuality, a prostatectomy is medically indicated in cases of incontinence only when that condition occurs as a result of a significant underlying problem, usually urine retention.</i>
  In point of fact, even when surgery is necessary to alleviate urine retention, failure to remove the enlarged prostate may lead to infection of the kidneys and to renal failure but is unlikely to cause the procreative organs to become diseased. This point is alluded to <i>en passant</i> by Rabbi Weisz who expresses reservations with regard to this matter.14<i class="footnote">Rabbi Weisz’ mention of this matter is all the more remarkable because it occurs in a discussion of a case which almost certainly involved a malignancy, although the diagnosis is not explicitly stated.</i>
  Dr. Ness and Rabbi Feinstein both assert that, in the absence of malignancy, a prophylactic vasectomy for the purpose of preventing epididymitis cannot be justified on the basis of Rambam's definition of an injury "at the hands of heaven" since the infection is not yet present and, indeed, in the vast majority of cases will not occur.15<i class="footnote">Rabbi Feinstein’s view that a prophylactic vasectomy is not to be regarded as encompassed in Rambam’s definition of an injury “at the hands of heaven” is expressed in his original discussion of this matter. In his later discussion Rabbi Feinstein reports that he has been informed by a urologist that, unless prophylactic measures are taken, epididymitis will occur in a significant number of cases. Based on that information, Rabbi Feinstein concludes that, according to Rambam’s position, severance of the vas deferens constitutes injury “at the hands of heaven.” See, however, <i>supra</i>, note 1, and <i>infra</i>, notes 20-22 and accompanying text.</i> A similar view was earlier advanced by <i>Helkat Ya'akov</i> and Rabbi Hedaya. However, neither Rabbi Telushkin, Rabbi Henkin nor Rabbi Frank draws such a distinction. Indeed, in a brief comment published in <i>Ozar ha-Poskim</i>, I, addenda, p. 6 and his <i>Har Ẓevi</i> on <i>Tur Even ha-Ezer</i> 5 (published as an addendum to the Jerusalem 5718 edition of <i>Tur Even ha-Ezer</i>), Rabbi Frank advances the novel opinion that one is rendered a <i>pezu'a daka</i> only as the result of wanton mutilation (<i>peshi'ah</i>) but not as the result of any justifiable medical procedure. It follows, then, that according to Rabbi Frank's thesis, even a vasectomy which is entirely prophylactic in nature entails no halakhic disability. Moreover, Rabbi Waldenberg, <i>Ẓiz Eli'ezer</i>, XIV, no. 94, correctly notes that, according to Rabbi Frank, no problem arises even if the vasectomy is performed in the scrotum. This position is espoused by Rabbis Waldenberg and Wasserman as well. It should, however, be noted that <i>Yam shel Shlomoh, Yevamot</i> 8:9, expresses a view antithetical to that of Rabbi Frank. Rabbi Frank's view is also rejected in a rebuttal of his comments by R. Isser Zalman Meltzer, <i>Ozar ha-Poskim</i>, I, addenda, p. 7. 
  Rabbi Schneerson prefers that, if necessary, the vasectomy be performed subsequent to the actual removal of the prostate rather than prior to completion of that procedure. Although he does not clarify the considerations which prompt this suggestion, it may be assumed that Rabbi Schneerson is under the impression that epididymitis results from the surgical procedure itself. Since, according to Rambam, an already diseased organ may be removed without causing halakhic complications, the vas deferens should be severed only after the infection has been contracted. A similar view predicated upon this consideration is expressly formulated by Rabbi Waldenberg. However, since, in reality, even sub-sequent to removal of the prostate, the procedure is entirely prophylactic, there does not appear to be any halakhic difference in this regard. Medically speaking, there is at least a marginal advantage in performing the vasectomy prior to instrumentation in order to prevent any possibility of contracting an infection during the course of the prostate removal procedure itself.16<i class="footnote">See <i>Urologic Surgery</i>, ed. James F. Glenn, second edition (New York, 1975), p. 500.</i>
  V. "Doubtful" Injury
  The status of a "doubtful" <i>kerut shafkhah</i> or <i>pezu'a daka</i>, i.e., of a person who may or may not have received an injury which results in this status, is the subject of dispute among latter-day authorities. R. Joseph Hazan, <i>Hikrei Lev, Even ha-Ezer</i>, no. 7, argues that, according to many authorities, such an individual may not engage in sexual intercourse, just as it is forbidden for anyone to commit any act which involves a "doubtful" transgression of a biblical prohibition. Other authorities, however, maintain that this general rule does not apply to a person who has sustained an injury which "doubtfully" disqualifies him from engaging in marital relations. The Gemara establishes that, in terms of the biblical prohibition, only a person known with certainty to be a bastard is forbidden to contract a marriage with a person of legitimate birth. Many authorities maintain that this rule applies equally to persons disqualified by reason of maimed genitalia. It is true, however, that a "doubtful" bastard is forbidden to enter into such a marriage by virtue of rabbinic edict. It might well be assumed that such rabbinic proscription applies to a "doubtful" <i>pezu'a daka</i> as well. Nevertheless, many authorities argue that the rabbinic restriction placed upon "doubtful" bastards is designed solely to protect the genealogical purity of future progeny. This consideration, they maintain, is not germane in the case of a "doubtful" <i>pezu'a daka</i> since one who had indeed suffered such an injury cannot sire children. Some authorities maintain that a "doubtful" <i>pezu'a daka</i> may engage in marital relations only if the "doubt" is factual in nature, but not if the "doubt" is rooted in an unresolved question of Jewish law; others maintain that such a person may engage in intercourse even if the doubt is with regard to the applicable halakhah. A list of the various authorities espousing each of these positions is presented by Rabbi Birg. In light of the permissive views with regard to the status of a "doubtful" <i>pezu'a daka</i>, both <i>Helkat Ya'akov</i> and Dr. Ness advise a patient under-going a prostatectomy to request his surgeon not to sever the vas deferens. Minimally, it is to be anticipated that such request will engender "doubt" with regard to whether the surgeon considered it prudent to follow those instructions. The patient may then rely upon the authorities who rule that no restrictions apply to a "doubtful" <i>pezu'a daka</i>. 
  VI. Current Procedures
  But, unfortunately, much of the preceding discussion is entirely academic. With the exception of the earlier noted position of Rabbi Frank and Rabbi Waldenberg, the permissive opinions expressed in the past are based on the assumption that the vas deferens is severed within the body. In point of fact, a transurethral prostatectomy is the procedure of choice unless contraindicated because of localized carcinoma of the prostate or in the case of an unduly enlarged prostate.17<i class="footnote">See <i>Campbell’s Urology</i>, fourth edition (Philadelphia, 1979), III, 2361.</i> Since no incision is made into the abdominal cavity the vasectomy is performed by severing the vas deferens within the scrotum.18<i class="footnote"><i>Ibid.</i>, p. 2368, fig. 79-8; and <i>Urologic Surgery</i>, pp. 500-501, figs. 37-21 and 37-22.</i> Even when other methods are employed in removing the prostate, it is usually more convenient to perform the vasectomy within the scrotum. This procedure renders the patient a <i>pezu'a daka</i> according to almost all the authorities. The sole exceptions are Rabbi Frank and Rabbi Waldenberg who deem any procedure performed for medical reasons to constitute an injury at the "hands of heaven" with no ensuing disqualification. 
  A recent issue of <i>Ozrot Yerushalayim</i>, no. 297 (5742), edited by R. Zevi Moskowitz, contains statements by R. Yitzchak Ya'akov Weisz, R. Shmuel ha-Levi Wosner, Rabbi S. Y. Nissim Karelitz and the <i>Bet Din</i> of the Jerusalem <i>Edah ha-Haredit</i> declaring that the permissive rulings based upon the position of <i>Hazon Ish</i> do not apply to prostate surgery involving a vasectomy performed in the scrotum. An advertisement to this effect appeared in the January 28, 1982 issue of <i>Ha-Modi'a</i>, an Israeli newspaper published by Agudath Israel. It is noteworthy that Rabbi Feinstein's first discussion of this question is based upon the assumption that the vas deferens is severed within the body and hence he had no difficulty in permitting the procedure while his lengthier subsequent discussion is predicated upon an awareness that the vasectomy is performed in the scrotum. 
  A number of the above-cited statements refer to this procedure as a recently introduced innovation and recommend that, if a vasectomy is deemed necessary, the vas deferens be severed internally. Actually, transurethral procedures have been widely employed for over forty years.19<i class="footnote">See <i>Campbell’s Urology</i>, p. 2361.</i> Alternative procedures increase the risk to the patient and should not be facilely advised simply to overcome halakhic problems. It is apparent that many of the rabbinic discussions dealing with this matter were predicated upon information already obsolete at the time of publication. 
  Particularly in light of these recent statements, it is necessary to emphasize that it may be possible to avoid this problem entirely. A number of medical studies have shown that routine vasectomy in conjunction with prostate surgery is unnecessary and is of little or no value in preventing epididymitis.20<i class="footnote">Jack M. Lynn and Reed M. Nesbit, “The Influence of Vasectomy upon the Incidence of Epididymitis Following Transurethral Prostatectomy,” <i>Journal of Urology</i>, LIX (1948), 72-75; and George Haralambidis and Anthony N. Spinelli, “Vasectomy: An Evaluation,” <i>Journal of Urology</i>, LXXXIX (1963), 591-94.</i> As a result this procedure has been abandoned in a number of major medical centers. In some hospitals antibiotics are administered prophylactically in order to accomplish the same result.21<i class="footnote">See James J. Plorde <i>et al.</i>, “Course and Prognosis of Prostatectomy; With a Note on the Incidence of Bacteremia and Effectiveness of Chemoprophylaxis,” <i>New England Journal of Medicine</i>, vol. 272, no. 6 (February 11, 1965), pp. 269-77.</i> In other hospitals even this is considered to be superfluous. In a note appended to Rabbi Unterman's contribution to <i>Ozar ha-Poskim</i>, I, 327, the editors comment that Dr. Shapiro reported that for a period of ten years he had refrained from performing prophylactic vasectomies without untoward effect in any patient. Similarly, Dr. Ness, who was himself a physician, advises that performance of a routine vasectomy in conjunction with prostate surgery is medically unnecessary. Several urologists consulted by this writer have concurred in this advice. Dr. Daniel Wiener, a member of the faculty of the Albert Einstein College of Medicine, added that, in his opinion, performance of a vasectomy may actually increase the likelihood of epididymitis since severance of the vas deferens blocks egress of bacteria which may already be present in the epididymis after instrumentation and hence should not be performed as a routine procedure. 
  In his later responsum, Rabbi Feinstein, <i>Iggerot Mosheh, Even ha-Ezer</i>, IV, no. 29, sec. 8, advises that the patient insist upon administration of antibiotics in lieu of undergoing a prophylactic vasectomy and that he seek the services of a urologist who will agree to this procedure.22<i class="footnote">In a similar vein, R. Menachem Mendel Schneerson, <i>Likkutei Siḥot</i>, XII, 212, advises that publicization of the success of prostatectomies performed without severance of the vas deferens will encourage other urologists to perform the procedure in that manner. He further advises that, if the vas deferens must be severed, it be done after excision of the prostate rather than before.</i> If, however, the procedure has been performed because of the surgeon's fear of epididymitis, Rabbi Feinstein maintains that, according to Rambam, the patient is regarded as having sustained an injury "at the hands of heaven" and may continue to engage in marital relations with his wife. However, according to other authorities who disagree with Rambam, a prophylactic procedure of such nature is regarded as an "injury at the hands of man" and marital relations are forbidden. Accordingly, Rabbi Feinstein rules that an unmarried person who has undergone such a procedure should not be permitted to marry a woman other than a convert with whom intercourse subsequent to sustaining such an injury is permitted. 
  VII. "Cup of Roots"
  The halakhic problems associated with prostate surgery are not limited to the question of resuming marital relations, nor are they limited solely to the performance of a vasectomy. The biblical injunction, "neither shall you do this in your land" (Leviticus 22:24) constitutes a prohibition against castrating or otherwise maiming an individual in a manner which renders him a <i>pezu'a daka</i>. Hence a surgeon is forbidden to perform such a procedure other than for reasons of grave medical necessity.23<i class="footnote"><i>Minḥat Ḥinnukh</i>, no. 291, opines that, unlike the prohibition concerning “rounding the comers of the head” which applies equally to the barber and to the person whose hair is cut, this transgression does not apply to the patient undergoing such procedure. This view is disputed by R. Pinchas Horowitz, renowned as the author of <i>Hafla’ah</i>, in his <i>Netivot la-Shevet, Even ha-Ezer</i> 5:7, and is a subject of doubt to R. Eliyahu Klatzkin, <i>Dvar Eliyahu</i>, no. 17. All agree, however, that the patient commits a prohibited act in “assisting” the surgeon who is prohibited from performing the act.</i> <i>Hazon Ish</i> points out that drinking a "cup of roots," i.e., a potion which induces permanent sterility, is forbidden by rabbinic edict. Similarly, asserts <i>Hazon Ish</i>, it is forbidden to perform any procedure which leads to permanent sterility since all such procedures are analogous to drinking a "cup of roots."
  Rabbi Feinstein, <i>Iggerot Mosheh, Even ha-Ezer</i>, IV, no. 28, sec. 1, takes issue with <i>Hazon Ish's</i> comparison of prostate surgery to drinking a "cup of roots." Rabbi Feinstein argues that rabbinic edicts are limited in their application and prohibit only that which is specifically forbidden. Moreover, although there are certainly cogent reasons for forbidding the use of a "cup of roots" in order to effect sterility, similar concerns do not apply to prostate surgery. The "cup of roots" was readily available and, since it did not pose any apparent health hazard, its use was likely to be abused. Prostate surgery, however, can be performed only by a trained surgeon and, in light of the inherent danger, is not likely to be undertaken other than for serious medical reasons. 
  Rabbi Birg points out that some authorities maintain that drinking a "cup of roots" is forbidden by biblical law. <i>Tosafot, Sukkah</i> 26a, posits a view ascribed to Rashi to the effect that one who becomes sterile as a result of drinking a "cup of roots" is also forbidden under biblical law from engaging in intercourse. Rabbi Birg lists the various authorities who disagree with regard to this issue. A patient who has undergone a prostatectomy, even without an accompanying vasectomy, although he suffers no diminution of libido and is capable of sustaining an erection, cannot ejaculate and hence is sterile. Accordingly, argues Rabbi Birg, performance of prostate surgery is halakhically equivalent to drinking a "cup of roots."
  It is, of course, clear that even actual castration must be performed if there is any danger to the life of the patient which can be averted thereby.24<i class="footnote">Cf., however, the opposing view of <i>Sho‘el u-Meshiv, Mahadura Tinyana</i>, III, no. 44. This surprising position is rebutted by <i>Ta‘alumot Lev</i>, II, no. 4. Moreover, Ritva, <i>Yevamot</i> 65b, explicitly permits castration in cases of <i>pikkuaḥ nefesh</i>.</i> Whether or not rabbinic prohibitions forbidding actions leading to sterility are suspended for considerations of health, even though the patient's life is not endangered, is a subject of dispute among halakhic authorities.25<i class="footnote">See <i>Contemporary Halakhic Problems</i>, I, 96-99.</i> Accordingly, Rabbi Birg advises that, when there is no danger to the life of the patient, the prostate procedure be performed by a non-Jewish urologist. This procedure is permissible even though <i>Shulḥan Arukh, Even ha-Ezer</i> 5:14, rules that it is forbidden to direct a non-Jew to perform an act of castration. Such a directive is forbidden either because non-Jews, according to some authorities, are forbidden to perform acts of castration by virtue of the provisions of the Noachide Code or because of the general rabbinic prohibition against directing a non-Jew to perform a proscribed act on behalf of a Jew. Nevertheless, R. Moshe ha-Levi Epstein, <i>Bet Mosheh, Even ha-Ezer</i> 5:13, permits such acts on the part of a non-Jew for therapeutic purposes since the intended result is to effect a cure while the resultant castration or sterility is entirely unintended (<i>davar she-eino mitkaven)</i>. To be sure, when the concomitant forbidden effect is a necessary one <i>(pesik reisheih)</i>, the act is forbidden to a Jew even under such circumstances. Nevertheless, <i>Magen Avraham, Oraḥ Hayyim</i> 253:41, rules that non-Jews may perform—and be directed to perform—otherwise forbidden acts even under such circumstances.26<i class="footnote">Cf., however, R. Benjamin Silber, <i>Brit Olam</i>, no. 16. See also the discussion above, pp. 8f., regarding the permissibility of a <i>pesik reisheih</i> on the part of a non-Jew.</i> <i>Dvar Eliyahu</i>, no. 17, similarly permits such a procedure to be performed by a non-Jew, albeit on somewhat different grounds. <i>Dvar Eliyahu</i> reasons that the non-Jewish physician acts on his own initiative rather than at the behest of the Jew. Although a Jew may not direct a non-Jew to perform a forbidden act on his behalf, he need not seek to prevent a non-Jew from performing such acts (other than acts involving violations of Sabbath restrictions) on his behalf. 
  
  Chapter VIII Artificial Heart Implantation
  
  <i>And I have given unto you a new heart and a new spirit will I put within you…</i>.
  EZEKIEL 36:26
  Implantation of a mechanical heart presents society with a wide array of ethical questions. These issues notwithstanding, one can only applaud the advances in medical technology which have made implantation of an artificial heart a reality. From the Jewish point of view this development is all the more welcome because, in the past, rabbinic decisors have been constrained to decry cadaver heart transplants. That position was based primarily upon the consideration that it is medically feasible to accomplish a successful heart transplant only by relying upon neurological criteria of death in salvaging the donor's heart. 
  At the time of the performance of the first successful heart transplants, a number of leading halakhic authorities pronounced such procedures to be in violation of Jewish law. Some claimed that each heart transplant procedure entails two acts of homicide, viz., the immediate demise of the terminally ill donor from whom the healthy heart is removed and the premature death of the recipient.1<i class="footnote">See R. Moses Feinstein, <i>Ha-Pardes</i>, Adar-Nisan 5729, p. 4; and <i>idem, Iggerot Mosheh, Yoreh De‘ah</i>, II, no. 174.</i> In order to salvage the heart of the donor for transplant purposes, the heart must be removed before the onset of tissue degeneration. Were the physician to wait until the patient could be pronounced dead on the basis of the halakhic, and heretofore commonly accepted, criteria of death, use of the heart for purposes of transplantation would be precluded. Hence, physicians contemplating removal of the heart must perforce rely upon brain death criteria in pronouncing the death of the donor. However, brain death criteria are halakhically unacceptable as a means of determining that death has indeed occurred. The overwhelming consensus of authoritative rabbinic opinion is that, for all legal and moral purposes, death occurs only upon cessation of both cardiac and respiratory function.2<i class="footnote">See sources cited in <i>Contemporary Halakhic Problems</i>, I, 377-93, reprinted in <i>Jewish Bioethics</i>, ed. Fred Rosner and J. David Bleich (New York, 1979), pp. 277-95; this writer’s “Neurological Criteria of Death and Time of Death Statutes,” <i>Jewish Bioethics</i>, pp. 303-16; and R. Aaron Soloveichik, “The Halakhic Definition of Death,” <i>Jewish Bioethics</i>, pp. 296-302.</i> Any act, either direct or indirect, which has the effect of hastening death, including withdrawal of life-support systems as well as actual removal of the heart itself, is forbidden by Jewish law. The situation with regard to the criteria used to pronounce the death of the donor in order to facilitate procurement of hearts for transplant procedures remains unchanged. Therefore, such procedures are in violation of Jewish law insofar as they require the removal of the heart from a donor who, in the eyes of Jewish law, is yet alive. 
  The question of whether the transplant procedure constitutes an act of homocide vis-à-vis the recipient is another matter entirely. During the initial period of heart transplantation surgery, at a time when such procedures were essentially experimental, it may perhaps have been the case that statistically anticipated longevity was decreased, rather than enhanced, as a result of the transplant procedure. Following the early transplant operations there was indeed a long hiatus during which few such procedures were performed because of the unacceptably high incidence of rejection of transplanted hearts by recipients. However, with the development of immuno-suppressive drugs, the fact-pattern has changed radically. In recent years, the twelve-month survival rate for recipients of heart transplants has been approximately 65%.3<i class="footnote">See P. E. Over, E. B. Stinson <i>et al.</i>, “Cardiac Transplantations: 1980,” <i>Transplantation Proceedings</i>, vol. 13, no. 1 (March, 1981), p. 203. Some medical centers have, in several recent years, achieved a one-year survival rate of 75%. See Jack G. Copeland, Robert B. Mammana <i>et al.</i>, “Heart Transplantation: Four Years’ Experience with Conventional Immunosuppression,” <i>Journal of the American Medical Association</i>, vol. 251, no. 12 (March 23-30, 1984), p. 1563.</i> Between 45% and 50% of all recipients survive for a period of at least five years following implantation.4<i class="footnote">Over, “Cardiac Transplantation,” p. 203; Bruce A. Reitz and Edward B. Stinson, “Cardiac Transplantation—1982,” <i>Journal of the American Medical Association</i>, vol. 248, no. 10 (Sept. 10, 1982), p. 1225; and Arthur L. Caplan, “Ethical and Policy Issues in the Procurement of Cadaver Organs for Transplantation,” <i>The New England Journal of Medicine</i>, vol. 311, no. 15 (Oct. 11, 1984), p. 981.</i> In contrast, in one study it was found that more than 90% of patients who presented clinical profiles identical to those of individuals chosen to receive cadaver transplants, but who did not receive heart transplants because appropriate donor organs could not be found, succumbed to death from heart disease within a three-month period.5<i class="footnote">Over, “Cardiac Transplantation,” p. 203.</i>
  Quite obviously, since artificial heart implantation involves no human donor, the problem of foreshortening the donor's life is not at all germane. As to the prospect of enhanced longevity for the recipient, it is too early for any meaningful judgment to be made. Since, at the time of this writing, only a small number of artificial heart implantations have been attempted in human subjects, assessment of the success rate and evaluation of the potential for enhanced or diminished longevity are premature. It is nevertheless clear, at least after the fact, that the implantation of an artificial heart in the first instance in which it was undertaken was entirely warranted in terms of enhanced longevity. Given Dr. Barney Clark's clinical profile, the decision to replace his diseased heart with a mechanical device was entirely prudent. Without the operation, Dr. Clark faced imminent death as evidenced by the fact that his physicians performed the operation a day earlier than scheduled because they were convinced that he would otherwise not survive the night. Since the patient did survive for a period of 112 days subsequent to the implantation there is no question that the procedure did succeed in prolonging his life.6<i class="footnote">See <i>The New York Times</i>, March 24, 1983, p. 1, col. 5.</i>
  This is not to say that implantation surgery does not pose a significant philosophical question regarding the essential characteristics of humanhood. Indeed, some have questioned whether the recipient of a mechanical heart may, properly speaking, be termed a human being. 
  Whether the recipient of an artificial heart is or is not a human being in the legal sense of the term is probably of greater moment to Jews than to others. To be sure, were such a person subsequently to become a victim of homicide, the perpetrator might formulate a defense based on the plea that human life came to an end with the surgical removal of the natural heart. But there is nothing to prevent society from conceding the semantic argument while at the same time recognizing that the recipient should not be regarded as a mere robot. Society might then, through appropriate legislation and otherwise, proceed to treat the recipient of a mechanical heart as a human being for all legal and moral purposes. 
  Jewish law, however, is much more formalistic in nature. Since Halakhah does not enjoy the luxury of formulating new categories it cannot beg the question. There are a number of practical corollaries to the theoretical question of whether or not the recipient of a mechanical heart is deemed to be a human being: (1) May the recipient's wife remarry without benefit of a <i>get</i> (religious divorce)? (2) Do his heirs immediately succeed to his estate? (3) If the recipient is not a human being, is he then a corpse requiring immediate burial? (4) Must the family immediately observe <i>shiv'ah</i> and recite <i>kaddish</i>? To be sure, these questions constitute a <i>reductio ad absurdum</i> and evoke the intuitive reaction that the recipient is indeed a human being. Nevertheless, our intuitive response requires reasoned analysis and substantiation. 
  The question in only a slightly different guise was raised by theologians and moralists in the early days of transplant surgery. Subsequent to receiving a transplanted heart, does the patient retain his previous identity or does he acquire the <i>persona</i> of the donor? If it is assumed that the heart is the <i>sine qua non</i> of personal identity, <i>a fortiori</i>, it must be presumed to constitute a necessary condition of humanhood. This, it seems to this writer, is not a view espoused by Judaism. Although cardiac activity is the crucial indicator of the presence of life, the heart is not the hallmark of personhood. 
  An attempt has been made to demonstrate, on the basis of halakhic dialectic, that the significance of cardiac activity lies, not in the ontological status of the heart itself, but rather in its function in causing blood to course through the body.7<i class="footnote">See J. David Bleich, <i>“Simanei Mitah,” Ha-Pardes</i>, Tevet 5737, pp. 15-18.</i> Hence, a patient whose circulatory system is sustained by a mechanical heart is deemed to be endowed with life. Since cardiac activity, even minus the <i>kardia</i>, is a sufficient condition of life, it follows that cardiac activity within a human organism equals a living human being. The various halakhic issues attendant upon artificial heart implantation have been discussed by this writer in <i>Torah she-be-'al Peh</i>, vol. XXV (5744). 
  I
  Prior to undertaking an analysis of the status of the recipient of a mechanical heart, attention should be drawn to a significant problem which applies with equal force to the implantation of both cadaver and artificial hearts. At the time that the early cadaver transplants were undertaken, some scholars contended that the transplant procedure constitutes an act of homicide insofar as the recipient is concerned, not because of an attendant diminution of life expectancy, but because the removal of the diseased heart, in and of itself, constitutes an act of homicide.8<i class="footnote">See R. Judah Gershuni, <i>Or ha-Mizraḥ</i>, Nisan 5729, p. 133, reprinted in <i>idem, Kol Ẓofayikh</i> (Jerusalem, 5740), p. 373; and R. Menachem Kasher, <i>Teshuvot Divrei Menaḥem</i>, I, <i>Ḥoshen Mishpat</i>, no. 27.</i> The identical question arises with regard to the removal of a diseased heart for purposes of facilitating implantation of an artificial organ. 
  Assuming, <i>arguendo</i>, that in the eyes of Jewish law, the patient is deemed to be dead upon removal of the natural heart, it would follow logically that a patient who successfully undergoes an implant procedure and becomes reanimated would be categorized as a person who has risen from the dead. Thus, a successful implant procedure would constitute a form of resurrection of the dead. The question that must be posed is, then, whether an act of homicide, when performed by one who has the intent and ability to restore his "victim" to life, constitutes a proscribed act of murder in the event that the victim is indeed actually resurrected. For example, may a prophet, who is certain that he possesses the power to resurrect the dead, kill another person and then restore him to life? Or is the prophet forbidden to kill a person even under such circumstances since the act of killing constitutes an act of murder? To transpose the question to its medical context: Assuming that the removal of a diseased heart constitutes an act of homicide, may a physician remove the heart of his patient if he is confident that the patient will be reanimated subsequent to implantation of an artificial heart? Or is the surgeon forbidden to perform an act which is technically an overt act of murder even though he does so for the purpose of restoring the patient to life and healing the latter's malady?
  The Gemara, <i>Megillah</i> 7b, relates:
  Rabbah and R. Zeira celebrated a Purim repast together. They became intoxicated. Rabbah arose and slit R. Zeira's throat. On the next day he prayed on his behalf and restored him to life. Next year he said, "Come and we will conduct the Purim repast together." He [R. Zeira] replied, "A miracle does not occur at every moment."
  As related in this narrative, R. Zeira expressed the fear that the miracle of the previous year would not be repeated and that Rabbah might not succeed in restoring him to life. R. Zeira does not appear to be concerned that, even if Rabbah would be successful in performing an identical miracle a second time, he would yet have transgressed the prohibition against murder. Hence, it might be inferred that, when restoration of the victim to life is indeed a certainty, the act of killing does not entail transgression of the prohibition against homicide. 
  However, the incident reported in <i>Megillah</i> 7b is interpreted by some commentators in a manner which renders this conclusion nugatory. Maharsha explains that Rabbah did not actually slit the throat of R. Zeira; rather, explains Maharsha, Rabbah forced R. Zeira to drink an excessive amount of wine so that the latter became deathly ill and later Rabbah "restored him to life," i.e., Rabbah cured him by means of prayer. Similarly, Me'iri explains that Rabbah did not slaughter R. Zeira but "forced wine down his gullet." Moreover, Rabbah could not have been deemed culpable for his act since he had clearly reached the stage of the "drunkenness of Lot" and hence, for reason of mental incompetence, could not be held responsible for his actions.9<i class="footnote">See <i>Eruvin</i> 65a. It should be noted that numerous rabbinic authorities rule that it is forbidden to place oneself in a situation in which one will be exempt from the fulfillment of commandments and exonerated from liability for transgression by reason of drunkenness or the like. Nevertheless, there may be no prohibition in circumstances such as are recorded in <i>Megillah</i> 7b in which there is no intention to transgress, and indeed in which it is far from certain that transgression will occur, particularly when the person is intent upon fulfilling a <i>miẓvah</i>. R. Zevi Yecheskel Michelson, <i>Teshuvot Tirosh ve-Yiẓhar</i>, no. 127, citing Rashi, <i>Kiddushin</i> 33a, declares that inducing a state in which a person is exempt from fulfillment of commandments is forbidden only when accompanied by specific intent to secure such exemption. R. Malkiel Zevi Tennenbaum, <i>Teshuvot Divrei Malki’el</i>, V, no. 148, rules that such conduct is permissible in pursuit of a <i>miẓvah</i>.</i>
  II
  It may, however, be argued that the question regarding the permissibility of homicide in anticipation of subsequent restoration to life is based upon a contra-halakhic assumption. The question, as formulated, assumes that death and reanimation are two separate and discrete events. It may, however, be the case that, from the vantage point of Jewish law, when death is followed by resurrection, reanimation of the individual effectively nullifies the antecedent death and, for purposes of Halakhah, the individual is deemed never to have died. The litmus test is whether or not a marital relationship survives the decease of one of the marriage partners and his or her subsequent restoration to life. Or, to phrase the same question somewhat differently, is a person who has died and has been resurrected required to enter into a new marriage ceremony with his own "widow" in order that they may be permitted to live together as man and wife? This question is posed by R. Chaim Joseph David Azulai in his commentary on <i>Shulḥan Arukh, Birkei Yosef, Even ha-Ezer</i> 17:1, with regard to the marital status of the wife of R. Zeira. <i>Birkei Yosef</i> writes:
  With regard to the wife of R. Zeira [it is the case that] when her husband was slain and died that her marriage was certainly dissolved and she became permitted to all others. And when R. Zeira was restored to life the next day it was necessary to contract a marriage with his wife anew for she was an unmarried woman, as is the case with regard to one who is reconciled with his divorced wife in which case a new marriage is required since the original marriage is no longer extant, having been dissolved by means of a <i>get</i>, and a new entity is now created. Similarly, in this case, in which the husband has died, his death renders her permissible [to others] and nullifies his matrimonial relationship, and when he comes alive it is a new matter. Or perhaps the provision that "a woman acquires herself with the death of the husband" (<i>Kiddushin</i> 2a) applies only when he dies and remains deceased, but if he is not buried and is restored to life by a prophet or a pious man it becomes manifest that such death was not death in the manner of the death of all men. And the original marriage is not nullified [with the result that she remains] a married woman and lacks legal capacity to contract a marriage with any other man while her husband, when he is restored in life, is permitted to her immediately as was the case prior to his death. 
  In resolving this question, <i>Birkei Yosef</i> cites a discussion presented in the Palestinian Talmud, <i>Gittin</i> 7:3. The Mishnah, <i>Gittin</i> 76b, declares, "[If a man says,] 'This is your <i>get</i> if I do not return within twelve months,' and he dies within twelve months, it is no <i>get</i>." In the course of the discussion in the Babylonian Talmud focusing upon this Mishnah, the Gemara, <i>Gittin</i> 76b, poses the following query:
  R. Eleazar asked a certain elder: "When you permitted her to marry, did you permit her to do so immediately or after twelve months? Did you permit her to marry immediately since he cannot come, or did you permit her to marry after twelve months when his condition was fulfilled?"
  The consideration gives rise to this question is not immediately clear. Granted that the retroactive validity of the divorce is questionable, logically, the wife should nevertheless be permitted to marry immediately: If the <i>get</i> is valid retroactively she is a divorcée; if not, she is a widow. In either contingency she attains halakhic capacity to contract a marriage immediately following the death of her husband. Rashi, in his commentary, <i>ad locum</i>, concedes that this is, in fact, the case. Determination of a woman's status as a divorcée rather than as a widow is significant, comments Rashi, only in a situation in which the husband dies without issue. If the divorce is effective retroactively she is free to remarry as a divorcée; if not, as a childless widow, she is subject to the obligation of levirate marriage. 
  The parallel discussion in the Palestinian Talmud, <i>Gittin</i> 7:3, places the matter in an entirely different perspective:
  Is she permitted to marry [immediately]? R. Haggi said, "She is permitted." R. Jose said, "She is forbidden to marry; I say perhaps miracles befell him and he was restored to life."
  The Palestinian Talmud clearly considers not only the possibility of levirate obligation but also questions the woman's right to remarry as a widow.10<i class="footnote">Cf., however, R. Chaim Kanievsky, <i>Siaḥ ha-Sadeh, Kuntres ha-Likkutim</i>, no. 4, who endeavors to rebut <i>Birkei Yosef’s</i>, argument by contending that the Palestinian Talmud is concerned solely with the question of levirate marriage, and who maintains that, although the marital relationship is irrevocably severed upon the death of the husband, the conditional divorce is void under such circumstances because the stipulated condition voiding the divorce was fulfilled.</i> To be sure, none of the codifiers of Jewish law adopts the position of R. Jose in forbidding the immediate remarriage of the widow. <i>Birkei Yosef</i> observes that R. Jose's fear that "perhaps miracles befell him and he was restored to life" is set aside on the basis of empirical considerations but is not dismissed on substantive grounds. The probability of miraculous resurrection is of so unlikely a magnitude, asserts <i>Birkei Yosef</i>, that it need not at all be of concern. <i>Birkei Yosef</i> observes that the discussion in the Palestinian Talmud does nevertheless serve to demonstrate that, were such a miracle to occur, the matrimonial relationship would be viewed as having survived the death of the husband and his subsequent restoration of life. <i>Birkei Yosef</i> asserts that there is no reason to assume that the Babylonian Talmud disputes this view; rather, it ignores the contingency on grounds which are entirely empirical.11<i class="footnote">Similarly, when the halakhically posited criteria of death, including cessation of cardiac activity, are manifest but the patient is subsequently resuscitated it must be assumed that the patient was not dead during the intervening interval. See R. Moshe Sternbuch, <i>Kuntres Ba‘ayot ha-Zeman be-Hashkafat ha-Torah</i> (Jerusalem, 5729), chapter 1, p. 9, and R. Shlomoh Zalman Auerbach, cited by R. Gavriel Kraus, <i>Ha-Ma‘ayan</i>, Tishri 5729, p. 20. Thus, it is only <i>irreversible</i> criteria of death which establish that death has indeed occurred.</i>
  According to <i>Birkei Yosef</i>'s analysis, it necessarily follows that removal of a diseased heart, followed by implantation of either a cadaver organ or an artifical heart, does not constitute an act of homicide since, in his view, death is retroactively nullified by virtue of subsequent animation. 
  It is readily apparent that the question left unresolved in the Babylonian Talmud is neither resolved nor is it the subject of controversy in the Palestinian Talmud. In permitting immediate remarriage, R. Haggi does so only in situations in which status either as a widow or as a divorcée entails capacity to remarry. He is silent with regard to a situation in which an impediment to remarriage may exist by virtue of a possible levirate obligation and hence in which a determination of status as a divorcée rather than as a widow is crucial. R. Jose, of course, forbids remarriage in all instances because of the possibility that the husband may be restored to life. Rambam, <i>Hilkhot Gerushin</i> 9:11, takes note of the problem concerning remarriage in the face of a possible levirate obligation as formulated in the Babylonian Talmud and indicates that the question remains unresolved. In failing to indicate a barrier to remarriage in the absence of a possible levirate obligation, Rambam inferentially rejects the view of R. Jose. In rejecting the opinion of R. Jose, Rambam is consistent with his view that resurrection of the dead will occur only at the culmination of the messianic era.12<i class="footnote">R. Jose’s refusal to permit remarriage because of the possibility that “miracles befell him” and that the husband was restored to life appears to contradict the halakhic principle that notice need not be taken of improbable and unlikely contingencies.The controversy between R. Jose and R. Ḥaggi can perhaps best be understood in light of the controversy between early rabbinic authorities with regard to the sequence of events which will unfold in the eschatological era. Rambam, in his <i>Ma’amar Teḥiyat ha-Metim</i>, and Ramban, in his <i>Sha‘ar ha-Gemul</i>, maintain that resurrection will take place subsequent to the advent of the Messiah and will usher in the period of the world-to-come. Sa‘adia Ga’on, in the seventh treatise of his <i>Emunot ve-De‘ot</i>, maintains that there will be two periods of resurrection: the righteous will be restored to life in the days of the Messiah; others will be resurrected subsequent to the Day of Judgment, marking the commencement of the period of the world-to-come. This is also the view of R. David ibn Zimra, <i>Teshuvot Radbaz</i>, no. 1,069 (vol. III, no. 644), and appears to be the position of <i>Tosafot, Pesaḥim</i> 114b, <i>s.v</i>. <i>eḥad</i>, as well. Cf., also, the position espoused by R. Abraham ibn Ezra in his commentary on Daniel 12:2.Categorization of resurrection at the hands of a prophet as improbable, insofar as halakhic determinations contingent thereupon are concerned, appears to be incontestable and hence it may be assumed that even R. Jose assigns no halakhic import to that contingency. However, the advent of the Messiah is not only probable but certain. Accordingly, it appears to this writer that R. Jose espouses a view similar to that of Sa’adia Ga’on in maintaining that resurrection of at least a portion of Israel will occur at the time of the Messiah. Hence, he must consider the possibility that the Messiah may appear within the twelve-month period stipulated by the husband and the further possibility that the husband may be among those privileged to be restored to life during that period. R. Ḥaggi, in disagreeing with R. Jose, may well have adopted a position similar to that of Rambam and Ramban, viz., that resurrection will take place only in conjunction with the ushering in of the period of the world-to-come, a period in which corporeal and sensual activity will not occur. In rejecting R. Jose’s view, Rambam is consistent with the view regarding the time of resurrection expressed in his <i>Ma’amar Teḥiyat ha-Metim</i>.</i>
  There are, however, latter-day authorities who disagree with the principle formulated by <i>Birkei Yosef</i>. The Gemara, <i>Niddah</i> 61b, declares, "Commandments will be abrogated in the eschatological era," i.e., subsequent to the resurrection of the dead. Rabbi Elchanan Wasserman, <i>Kovez Shi'urim</i>, II, no. 29, formulates two possible analyses of that dictum: (1) The underlying principle may be that fulfillment of <i>mizvot</i> is contingent upon a specific time-period or historical epoch. Just as ritual obligations were not incumbent in the pre-Sinaitic era so, also, those obligations will lapse in the post-resurrection era. (2) Alternatively, the principle enunciated in <i>Niddah</i> 61b may simply be that the resurrected dead are not required to perform <i>mizvot</i>. The principle that "the dead are free" of all obligations, derived from Psalms 88:6, entails irrevocable abrogation of all further responsibility for fulfillment of commandments. Hence, the dead are relieved of all ritual obligations even subsequent to their resurrection. According to the latter analysis, release from such obligations is not limited to any particular epoch. Accordingly, the principle would apply even in contemporary times in the unlikely event that a particular corpse would miraculously be restored to life prior to the general resurrection. Whether or not the dead who were restored to life by the prophet Ezekiel were required to observe the commandments is contingent upon which of these two analyses is accepted. Similarly, according to the authorities who maintain that the righteous will be restored to life during the messianic era, the question of their obligation vis-à-vis fulfillment of <i>mizvot</i> in the interim period between their resurrection and the advent of the world-to-come is contingent upon which of these two analyses is regarded as correct. R. Elchanan Wasserman asserts that <i>mizvot</i> are eternally valid and binding, at least in theory, even in the period of the world-to-come. He advances arguments demonstrating that the second analysis is correct and that, in reality, there will be no obligation with regard to fulfillment of commandments in the world-to-come only because death, in and of itself, irrevocably terminates the obligation to perform <i>mizvot</i>.13<i class="footnote">See also Rambam, <i>Sefer ha-Miẓvot, shoresh</i> 3; cf., however, <i>Sifra, Parashat Ẓav</i> (Leviticus 7:35), sec. 158.</i> Accordingly, termination of such obligation is not rescinded by subsequent restoration to life. This position entails the negation of the notion that resurrection serves to nullify, or to reverse, earlier demise.14<i class="footnote">An opposing view is espoused by R. Chaim Kanievsky, <i>loc. cit</i>.</i> Since resurrection is not tantamount to a reversal of death, there is no logical manner in which a prior marital relationship can be regarded as having been re-established by resurrection. 
  III
  However, even rejection of <i>Birkei Yosef</i>'s position does not necessarily entail acceptance of the view that removal of a diseased heart constitutes an act of homicide. During the early period of cadaver heart transplants some rabbinic scholars urged the view that the question is, in fact, reducible to a matter which was the subject of a celebrated controversy between two eminent eighteenth-century authorities, R. Zevi Ashkenazi (Hakham Ẓevi) and R. Yonatan Eibeschutz. A young woman eviscerated, soaked and salted a chicken, but failed to find a heart. She consulted R. Zevi Ashkenazi who, as recorded in <i>Teshuvot Hakham Ẓevi</i>, nos. 74, 76 and 77, ruled that the animal was kosher. Hakham Ẓevi reasoned that, since it is impossible for any creature to survive without a heart for even a brief period of time, it must be assumed that the chicken, which had thrived and developed in a normal manner, must indeed have been endowed with a heart. The absence of a heart, declared Hakham Ẓevi, must assuredly be attributed to the predatory nature of a cat which must have been in close proximity. Not content with simply ruling with regard to the case presented to him, Hakham Ẓevi further announced that "even if witnesses will come and testify that they saw with open eyes that nothing was removed from the body of the chicken, it is certain that their testimony is false for it is contrary to reality." In sharp disagreement, R. Yonatan Eibeschutz, <i>Kereti u-Peleti</i> 40:4, declared that the testimony of credible witnesses cannot be dismissed peremptorily but rather "it must be assumed that there was some piece [of tissue] which does not appear as a heart but which is designed to fulfill the functions of the heart, but yet the chicken is <i>treifah</i> since it is not a normal heart."15<i class="footnote">Cf., however, R. Abraham Isaiah Karelitz, <i>Ḥazon Ish, Yoreh De‘ah</i> 4:14, who takes issue with <i>Kereti u-Peleti</i> in arguing that the chicken thus described is indeed kosher. <i>Ḥazon Ish</i> argues that, although removal of the heart does indeed render the animal a <i>treifah</i>, there is no source for a ruling that an anomaly of the heart similarly renders the animal a <i>treifah</i>.</i> It has been argued that, since according to Hakham Ẓevi it is impossible for any creature to survive without a heart, removal of a diseased heart <i>ipso facto</i> causes the death of the patient and hence constitutes an act of homicide. Reanimation by means of subsequent implantation of a cadaver heart would thus be viewed either as a form of <i>pirkus</i>16<i class="footnote">See <i>Oholot</i> 1:6: “… and likewise cattle and wild beasts … if their heads have been severed they are unclean (as carrion) even if they move convulsively after being cut off.” Movement which is not the product of vital forces is not indicative of life; hence, if removal of the heart is <i>ipso facto</i> identified with the occurrence of death, subsequent implantation of a heart must be regarded either as prolonging “convulsive” movement, i.e., as “artificial life,” or as a form of resurrection.</i> (convulsive movement) or as the generation of a new life. 
  Actually, the selfsame argument can well be formulated in a manner which is entirely consistent with the position of <i>Kereti u-Peleti</i>. As already noted, this authority accepts the basic premise that, absent a heart, a living creature cannot survive. <i>Kereti u-Peleti</i> merely posits the possibility that cardiac functions may be assumed by an organ which does not at all resemble a normal heart. Hence <i>Kereti u-Peleti</i> might well concede that removal of the heart from a living creature would lead to its immediate demise. 
  However, according to the conflicting view of R. Ya'akov Friedman of Karlin, <i>Mishkenot Ya'akov, Yoreh De'ah</i>, no. 10, removal of a diseased heart would not constitute an act of homicide. According to <i>Mishkenot Ya'akov</i>, some residual vital force remains even subsequent to removal of the heart.17<i class="footnote">See also R. Chaim Benveniste, <i>Knesset ha-Gedolah, Yoreh De‘ah</i> 40; R. Joseph Saul Nathanson, <i>Sho‘el u-Meshiv, Mahadura Tinyana</i>, IV, no. 108; and R. Shalom Mordecai Schwadron, <i>Da‘at Torah, Yoreh De‘ah</i> 40:8.</i> Hence, since according to <i>Mishkenot Ya'akov</i>, removal of the heart does not <i>ipso facto</i> entail death, a diseased heart might be removed in order to implant a cadaver heart without violation of the prohibition against homicide. 
  In point of fact, the identical question arises with regard to all forms of open-heart surgery. Although the heart is not removed in the course of such procedures, the heartbeat is stopped in order to prevent pulsation of the heart from causing a continuously moving surgical field. During the course of such procedures, life is sustained by means of a heart-lung machine which oxygenates the blood and circulates it through the body. If Hakham Ẓevi is to be understood as declaring that under no circumstances can life persist in the absence of a heart, it follows that, by the same token, life cannot persist in the absence of a functioning heart. It is clear that life is not contingent upon the mere physical presence of a heart but upon the continued pulsation of the heart which causes blood to course through the circulatory system. Nevertheless, no rabbinic authority has argued that causing the temporary cessation of cardiac function in the course of open-heart surgery, in and of itself, constitutes an act of homicide. The matter is readily understood if it is recognized that, even in accordance with the view expressed by Hakham Ẓevi, it is only irreversible cessation of cardiac activity which constitutes death. When, however, cardiac activity is interrupted and subsequently restored it is retroactively established that the original cessation of cardiac activity was not associated with the death of the person.18<i class="footnote">See above, note 11.</i> Were this not so, it would follow that successful resuscitation following cardiac arrest is a form of resurrection of the dead. 
  The same line of reasoning may be applied to transplant surgery involving the use of a cadaver heart. Hakham Ẓevi does indeed declare that life cannot exist without a heart, but he does not assert that life cannot exist other than with the original heart with which the living being was endowed. Hence, removal of the original diseased organ and its replacement with a cadaver heart may be viewed as merely a temporary cessation of cardiac activity which does not constitute death even according to Hakham Ẓevi. 
  However, implantation of an artificial heart differs significantly from a cardiac transplant. The recipient of a cadaver transplant is endowed with a functioning heart; the recipient of an artificial heart possesses an artificial organ. In the latter case, normal cardiac function has irreversibly ceased. Arguably, the artificial organ produces only artificial life. If so, removal of the diseased heart under such circumstances might constitute homicide since removal of the heart effectively terminates natural life in a manner which is irreversible. 
  Yet it would appear more logical to assume that Hakham Ẓevi would concede the validity of <i>Kereti u-Peleti'</i>s basic point, viz., that although no creature can survive without a heart, nevertheless, life does not require an organ possessing the form and characteristics associated with a normal, natural heart, but may be sustained by any organ which performs the functions associated with the heart. Hakham Ẓevi would then disagree with <i>Kereti u-Peleti</i> only to the extent that, absent the perceived presence of a normal heart, he finds no reason to posit the existence of an unrecognizable organ that performs the functions of a heart. Since Hakham Ẓevi deemed it so unlikely that the chicken in question might possess some unrecognizable organ that assumed the functions of the heart, he asserted that it must be presumed that a normal heart was indeed present and hence the animal is to be declared kosher. Nevertheless, although Hakham Ẓevi forcefully asserts that life cannot persist in the absence of a heart, there is no reason to presume that he would fail to concede that life might indeed be sustained by means of some other organ which performs the functions usually associated with the heart or even by means of a mechanical device designed to perform those functions. Accordingly, Hakham Ẓevi's position does not yield the conclusion that a patient whose life is sustained by means of a heart-lung machine or by means of an artificial heart must be regarded as deceased. Hence, even according to Hakham Ẓevi, removal of the diseased heart need not be regarded as an act of homicide. 
  IV
  However, Hakham Ẓevi, <i>Teshuvot Hakham Ẓevi</i>, no. 77, does acknowledge that, although life cannot exist without a heart, lifelike movement may persist subsequent to the removal of the heart. Such movement of a creature subsequent to removal of its heart is described by Hakham Ẓevi as merely convulsive in nature (<i>pirkus</i>):
  Similarly, when the heart has been removed, even though [the creature] is dead, and, in the case of a human, defiles in a tent and, in the case of an animal, [defiles as] carrion, it is possible for [the creature] to run and to move. This is the <i>pirkus</i> described in <i>Oholot</i>. But, all this notwithstanding, [the creature] is dead and not alive. 
  Nevertheless it is clear that, even according to Hakham Ẓevi, the vitality manifested by the recipient of an artificial heart is not in the category of <i>pirkus</i>. This may be demonstrated on the basis of a number of talmudic sources which, absent such conclusion, would contradict the thesis enunciated by Hakham Ẓevi. The Gemara, <i>Hullin</i> 33a, states:
  R. Aḥa bar Jacob said: One may infer from the ruling of R. Simeon ben Lakish that a Jew may be invited to partake of internal organs, but a gentile may not be invited to partake of internal organs. What is the reason? For a Jew, the matter is contingent upon the act of slaughter; since the animal has been properly slaughtered, it is permitted [to Jews]. For gentiles stabbing is sufficient and the matter is contingent upon death [of the animal]. [Therefore] these [internal organs] are comparable to a limb [cut off] from a living animal. 
  This dictum is predicated upon the previously announced opinion of R. Simeon ben Lakish who declared that, upon severance of the trachea and esophagus, the internal organs which are suspended from these structures are, for purposes of halakhic categorization, regarded as having been separated from the animal and "placed in a basket" (<i>ke-manḥa be-dikula damya)</i>, i.e., they are no longer regarded as integral to the animal but merely as reposing in the body cavity which serves them as a "basket." Since these organs are regarded as having been "removed" from the animal before it expired, the organs are forbidden to gentiles as "a limb cut off from the living animal."19<i class="footnote">For a detailed exposition of this halakhic concept, see Rashba, <i>Torat ha-Bayit he-Arukh, Bayit Sheni, sha‘ar shelishi</i>.</i>
  The heart, which is suspended from the trachea by means of the bronchial tubes, is among the internal organs regarded as being placed in a basket as a result of the act of slaughter which entails severance of the trachea. This categorization involves acceptance of the principle that the animal remains alive even though the heart has been removed. Consideration of the heart as having been "placed in a basket" implies that the heart is no longer regarded as part of the animal. Yet, the internal organs are deemed to be "cut off from the living animal" despite the simultaneous "excision" of the heart. This can only mean that, despite the "removal" of the heart, the animal is regarded as still living since, were the animal regarded as already dead, the prohibition against partaking of "a limb cut off from the living animal" would not apply. 
  Thus, the position reflected in <i>Hullin</i> 33a appears to conflict with the view espoused by Hakham Ẓevi. According to the Gemara, upon slaughter of the animal, the heart is deemed to have been separated from the body and to have been "placed in a basket," but the animal is nevertheless regarded as yet living. However, for Hakham Ẓevi, life can no longer be present subsequent to the removal of the heart. According to Hakham Ẓevi, the prohibition against "a limb cut off from the living animal" should not apply. In declaring the prohibition applicable to internal organs subsequent to severance of the trachea, the Gemara seems, in effect, to adopt the position that life persists subsequent to the removal of the heart. 
  A similar apparent contradiction to Hakham Ẓevi's thesis emerges from the discussion of the Gemara, <i>Hullin</i> 121b:
  R. Oshaia taught: If a Jew slaughtered an unclean animal on behalf of a gentile, upon cutting both [the trachea and the esophagus] or the greater part of both, even though [the animal] still convulses, it conveys the uncleanliness of a foodstuff but not the uncleanliness of carrion. A limb severed from it is regarded as severed from the living animal and is forbidden to Noachides even after life has departed [from the animal]. 
  Here, again, it is evident that the Gemara assumes that life persists subsequent to the slaughter of the animal even though the heart is deemed to have been excised and "placed in a basket" by virtue of the act of slaughter. Similarly, the Mishnah, <i>Gittin</i> 70b, declares:
  If both [the trachea and the esophagus] or the major portion of both were cut and he declared, "Write a bill of divorce for my wife," they may write and deliver [the bill of divorce]. 
  Again, we are confronted by the identical problem. If the trachea and the esophagus have been severed, the heart must be deemed to have been "placed in a basket." If, as is the opinion of Hakham Ẓevi, there is no possibility of life in the absence of a heart, and, as is evident, from <i>Hullin</i> 33a, severance of the trachea and the esophagus is tantamount to excision of the heart, how is it possible to execute a valid <i>get</i> on behalf of a person who has the halakhic status of a corpse?
  The matter may, however, be placed in proper perspective upon examination of the comments of Rabbenu Nissim and R. Menachem Me'iri in their respective commentaries on <i>Hullin</i> 32b. The Gemara, <i>Hullin</i> 32b, states: "R. Simeon ben Lakish said, 'If he severed the trachea and afterwards pierced the lung (before he cut the esophagus) the slaughter is valid.' " This dictum demonstrates that, subsequent to severance of the trachea, the lung is regarded as though it has been "placed in a basket." Ordinarily, piercing the lung of an animal renders the animal a <i>treifah</i> and its meat unfit for consumption. In the case described by R. Simeon ben Lakish, the esophagus had not been severed and the act of slaughter remained incomplete. Nevertheless, the perforation of the lung is of no import. Rashi explains that, since the lung is suspended from the trachea, upon severance of the trachea, the lung is regarded as having been removed in its entirety from the animal and "placed in a basket." Hence, since the lung is no longer an integral part of the animal, perforation of the lung cannot render the animal a <i>treifah</i>. The lung, in effect, is regarded as having been completely removed and its disposition no longer has any effect upon the animal. Rabbenu Nissim, <i>Hiddushei ha-Ran, ad locum</i>, cites the comment of an anonymous early authority to the effect that, similarly, perforation of the heart or of the liver subsequent to the severance of the trachea does not render the animal a <i>treifah</i> "for all that is suspended from the trachea derives its vitality from it." Rabbenu Nissim himself disagrees with this position and states that the heart cannot be deemed to have been "placed in a basket." Rabbenu Nissim reasons that severance of the trachea cannot be regarded as tantamount to removal of the heart "for if the animal is completely dead how would the severance of the esophagus render the animal permissible?" The thrust of Rabbenu Nissim's argument is that, were the animal to be deemed dead by virtue of the severance of the trachea (which, on the basis of the principle <i>ke-manḥa be-dikula damya</i> is tantamount to excision of the heart), no act of slaughter could possibly be valid unless both the trachea and the esophagus were severed simultaneously. Slaughter of an animal requires the severing of both the trachea and the esophagus, but they need not necessarily be severed simultaneously. In the case described in <i>Hullin</i> 32b, the lung was perforated subsequent to severance of the trachea but prior to cutting the esophagus. But since severing the trachea, which is tantamount to excision of the heart, has the effect of "killing" the animal, the subsequent severing of the esophagus is performed on an already "dead" animal and, logically, should be of no effect. 
  A twentieth-century scholar, R. Menachem Kasher, <i>Teshuvot Divrei Menaḥem</i>, I, <i>Hoshen Mishpat</i>, no. 27,20<i class="footnote">This material originally appeared in <i>No‘am</i>, XIII (5730), pp. 10-20.</i> suggests that the disagreement between the two positions recorded by <i>Hiddushei ha-Ran</i> lies in acceptance or rejection of Hakham Ẓevi's thesis. According to the first opinion recorded by Rabbenu Nissim, life continues to be present even subsequent to "removal" of the heart by means of severance of the trachea and, hence, completion of the act of slaughter by severing the esophagus renders the animal permissible. The second opinion, i.e., the position espoused by Rabbenu Nissim himself, also recognizes that slaughter can be performed only on a living animal. For this reason, the second opinion maintains that, since the act of slaughter obviously cannot be performed on a dead animal, it follows that severance of the trachea cannot cause the heart to be deemed to have been "placed in a basket." If that were indeed the case severance of the esophagus would be of no avail. Accordingly, Rabbi Kasher asserts that, in expressing his view with regard to the impossibility of survival in the absence of a heart, Hakham Ẓevi follows the second opinion recorded by Rabbenu Nissim. 
  This analysis is most unlikely. It is highly improbable that Hakham Ẓevi, who maintained that his thesis was empirical in nature, would concede that these early authorities are in disagreement with regard to what he perceived to be a matter of objective reality rather than with regard to a point of law. This objection acquires enhanced cogency in light of Hakham Ẓevi's statement in <i>Teshuvot Hakham Ẓevi</i>, no. 77, to the effect that, not only is life contingent upon the heart, but that "with regard to this no person has ever disagreed." Moreover, according to this analysis of the second position advanced by Rabbenu Nissim, it follows that, although it is forbidden to invite a gentile to partake of internal organs of a non-kosher animal, it is nevertheless permitted to invite a gentile to partake of the heart of such an animal. A position of this nature is not found in the writings of any rabbinic decisor, i.e., there exists no statement to the effect that the heart is not included among the internal organs which may not be presented to a gentile. Moreover, the previously cited statements of the Gemara, <i>Hullin</i> 33a and <i>Gittin</i> 70b, appear to contradict the first position recorded by Rabbenu Nissim. 
  In order properly to understand Hakham Ẓevi's thesis it would appear that a sharp distinction must be drawn between actual, physical excision of the heart and a situation in which the heart is not physically separated from the body but, for purposes of establishing the relevant halakhah, is regarded as having been "placed in a basket." Indeed, it is undeniable that, even subsequent to severance of the trachea, the heart not only remains physically attached to the body but also continues to pump blood through the circulatory system. In this regard, the heart is distinguishable from the lung whose primary attachment to the body is by means of the trachea and which cannot continue to perform respiratory functions subsequent to severance of the trachea. 
  Bearing this point in mind, it is possible to explain the controversy between Rabbenu Nissim and the anonymous author of the first opinion cited by him with regard to whether the heart must be deemed to have been "placed in a basket." The anonymous first authority cited by Rabbenu Nissim maintains that the heart is deemed to have been "placed in a basket" upon severance of the trachea, even though it is still attached to the body by means of a yet functioning circulatory system. Rabbenu Nissim himself maintains that, in light of the continued attachment of the heart to the body by means of the circulatory system and by virtue of its continued functionality, the heart cannot be deemed to have been "placed in a basket" simply because the trachea has been severed. Nevertheless, even the anonymous authority who espouses the first opinion would concede that, since the heart continues to function, life remains present in the animal. Therefore, even though the heart is regarded as having been "placed in a basket," the animal is nevertheless not regarded as dead. Accordingly, a limb severed from the animal is regarded by the Gemara, <i>Hullin</i> 33a, as having been severed from a living animal. Similarly, a human being whose trachea has been severed is still regarded as alive and retains capacity to execute a <i>get</i>, as is evident from the statement of the Gemara, <i>Gittin</i> 70b. According to Hakham Ẓevi, this would not be the case in a situation in which the heart has been physically excised. In the latter case, since the heart has been totally separated from the body and has entirely ceased to function, it is impossible, according to Hakham Ẓevi, for any residual vitality to remain. Thus, Hakham Ẓevi's comments must be understood as applying only to situations in which the heart has been physically removed, but not to situations in which, only as a halakhic construct, is the heart deemed to have been "placed in a basket."
  This distinction finds support in the comments of Me'iri, <i>Hullin</i> 33a:
  Since we have explained that, whenever the trachea is severed, the lung is regarded as if it is placed in a basket, some are of the opinion that even if one were to come and remove it totally before the esophagus is severed [the slaughter] is valid. But this is not at all correct…. The principle is stated only with regard to perforation [of the lung, viz.,] that [the animal] is not rendered a <i>treifah</i> in that manner since perforation and other <i>treifot</i> do not kill immediately; but whenever [the lung] is totally removed [the animal] dies before slaughter and there is no doubt that it is carrion. 
  In these comments, Me'iri distinguishes, even with regard to the lung, between mere perforation of the lung subsequent to severance of the trachea and <i>actual</i> removal of the lung. In the case of the former, the animal is not a <i>treifah</i> because, as indicated by the Gemara, the lung is regarded as having already been "placed in a basket." Nor is the animal regarded as already dead on the basis of what is only "constructive" placement in a basket. However, declares Me'iri, if the lung is removed subsequent to severance of the trachea, but before severance of the esophagus, the animal is <i>neveilah</i>, or carrion. The animal is regarded as having died immediately upon removal of the lung prior to severance of the esophagus since the animal cannot survive the physical removal of the lung. Indeed, Me'iri's position parallels that of Hakham Ẓevi: Hakham Ẓevi asserts that survival without a heart is impossible; Me'iri, in effect, declares that, similarly, survival without a lung is impossible. 
  It should also be noted that there is no evidence that the author of the first opinion cited by Me'iri disagrees with Hakham Ẓevi. The anonymous author of the first opinion asserts only that the animal may survive for at least a brief period subsequent to removal of the lung and, accordingly, the animal is rendered permissible for food if the esophagus is severed during that period. A similar statement is not made with regard to removal of the heart; the authority who espouses that opinion may well agree that removal of the heart results in instantaneous death so that severance of the esophagus is of no avail. 
  V
  Me'iri's comments certainly support a distinction between actual physical removal of an organ and what may be termed "constructive" removal of the organ. Constructive removal denotes a situation in which a halakhic status of removal is posited on the basis of interpretation and analysis of attendant circumstances. In a situation of constructive removal of the heart, the heart remains <i>in situ</i> but, for purposes of Halakhah, is regarded "as if" it were placed in a basket. Thus Hakham Ẓevi's statement regarding the impossibility of life in the absence of a heart may be viewed as applying only to physical removal of the heart but not to situations in which the heart is only regarded "as if" it were placed in a basket. 
  However, merely to draw a distinction between actual and constructive removal of the heart is not to present a conceptual basis for that distinction. Hakham Ẓevi recognizes that it is entirely possible that movement may be manifest in various organs and limbs of the body even subsequent to physical removal of the heart. Such motion is dismissed by Hakham Ẓevi as "the convulsive movement referred to in <i>Oholot</i>, but nevertheless [the animal] is dead and not alive." Although severance of the trachea renders the heart "as if" it were placed in a basket, it would be possible similarly to characterize the residual motion manifest after severance of the trachea as "convulsive movement" which is not at all an indicator of the presence of life. Yet, as has been shown earlier, in situations in which the heart remains <i>in situ</i>, but is regarded "as if" it were already placed in a basket, the animal is regarded as still living. 
  The Mishnah, <i>Oholot</i> 1:6, states, "And likewise cattle and wild beasts … if the heads have been severed, they are unclean [as carrion] even if they move convulsively like the tail of a newt (or a lizard) that twitches spasmodically after being cut off." Decapitation is here depicted as a definitive indication that death has occurred, But decapitation is hardly the only recognized symptom of death. The Gemara, <i>Yoma</i> 85a, posits other indicators of death as well. The case in point concerns an individual trapped under a fallen building. Since desecration of the Sabbath is mandated even on the mere chance that a human life may be preserved, the debris of a collapsed building must be cleared away even if it is doubtful that the person under the rubble is still alive. However, once it has been determined with certainty that the person has expired, no further violation of Sabbath regulations may be sanctioned. The question which then arises is how much of the body must be uncovered in order to ascertain that death has in fact occurred? The Gemara cites two opinions with regard to that question. The first opinion cited by the Gemara maintains that the nose must be uncovered and the victim of the accident pronounced dead only if no sign of respiration is found at the nostrils. A second opinion maintains that examination of the chest for the absence of a heartbeat is sufficient to determine that death has occurred. It is evident that both opinions regard respiration as the crucial symptom indicating the existence of life. Hence both opinions agree that absence of respiration at the site of the nostrils is a sufficient criterion of death. The second opinion merely adds that absence of a heartbeat is also to be deemed sufficient evidence that death has actually occurred. This is evident from the statement of R. Papa quoted by the Gemara in clarification of this controversy. R. Papa states that there is no disagreement between the two opinions in instances in which the body is uncovered "from the top down." In such cases the absence of respiration is regarded by all as conclusive in nature. The dispute, declares R. Papa, is limited to situations in which the body is uncovered "from the bottom up" and thus the heart is uncovered first. The controversy in such cases is whether the absence of a heartbeat is sufficient evidence, in and of itself, to establish that death has occurred, or whether further evidence is required, viz., uncovering of the nostrils. The necessity for examination of the nostrils is based upon the assumption that it is possible for life to exist even though such life may be undetectable by means of examination of the chest for the presence of a heartbeat. Rashi succinctly comments that the first opinion maintains that examination of the chest is insufficient to determine whether or not life is present "for at times life is not evident at the heart but is evident at the nose."
  It would appear that reflected in these two sources, <i>Oholot</i> 1:6 and <i>Yoma</i> 85a, are two independent criteria, either of which is sufficient to establish that death has occurred: (1) decapitation; and (2) cessation of cardiac activity as manifest by absence of respiration. 
  R. Moshe Sofer, <i>Teshuvot Hatam Sofer, Yoreh De'ah</i>, no. 338, posits a tripartite test to be utilized in determining whether or not death has occurred. <i>Hatam Sofer</i> declares, "But in any case, once [the patient] lies as an inanimate stone and there is no pulsation whatsoever, and if subsequently respiration ceases we have only the words of our holy Torah that he is dead." <i>Hatam Sofer</i> adds a further criterion in addition to those found in <i>Yoma</i> 85a, viz., absence of all bodily movement with the result that the patient lies "as an inanimate stone." The other criteria posited by <i>Hatam Sofer</i> are based upon the discussion in <i>Yoma</i> 85a. The absence of pulsation required by <i>Hatam Sofer</i> is clearly synonymous with cessation of cardiac activity. <i>Hatam Sofer</i> requires that the absence of detectable cardiac activity must be accompanied by cessation of respiration in accordance with the opinion recorded in <i>Yoma</i> 85a which maintains that examination of the area surrounding the heart is not to be relied upon since, at times, a heartbeat may indeed be present but not be discernible. In this ruling <i>Hatam Sofer</i> follows the position of Rambam, <i>Hilkhot Shabbat</i> 2:19, <i>Shulḥan Arukh, Oraḥ Hayyim</i> 329:4, and other codifiers who rule in accordance with the opinion that examination of the nostrils is an absolute requirement. Thus, according to <i>Hatam Sofer</i>, death may be pronounced only upon manifestation of three criteria: (1) cessation of all bodily movement; (2) absence of pulsation; and (3) total absence of respiration. 
  Although <i>Yoma</i> 85a fails to specify absence of bodily motion as a necessary criterion of death, it is certain that the source of <i>Hatam Sofer</i>'s position is Rashi's elucidation of that text. Commenting on the Gemara's query, "How far must he examine?" Rashi remarks, "If [the victim] appears as dead, [i.e.,] he does not move his limbs." The clear inference to be drawn from Rashi's comment is that, if animation is manifest in muscular movement, the victim is perforce known to be alive. Further examination is pointless since an individual in such a state cannot be pronounced dead on the basis of the absence of detectable signs of cardiac or respiratory activity. This, however, does not resolve the problem; it merely pushes the problem back one step. <i>Hatam Sofer</i> may well have relied upon Rashi's statement, but on what basis did Rashi determine that absence of bodily movement is a necessary condition of death?
  Careful examination of the words of the Mishnah, <i>Oholot</i> 1:6, yields a ready source for Rashi's position. The Mishnah states, "If their heads are severed they defile [as carrion] even though they move convulsively in a manner similar to the tail of a newt which convulses." The Mishnah carefully distinguishes between convulsive movement (<i>pirkus</i>) and movement which is indicative of animation produced by vital forces. This distinction is evidenced by the Mishnah's categorization of convulsive movement as comparable to the reflexive, twitching motion of the severed tail of a newt. The necessity for such a distinction can only reflect the antecedent premise that bodily movement is ordinarily a sufficient criterion of the continued presence of life. Thus, there arises a need for a distinction between motion which is a veridical criterion of life and mere <i>pirkus</i>, or convulsive movement, which is not a sign of vital animation. Accordingly, Rashi comments that other criteria of death assume significance only if the victim or patient appears to be dead as evidenced by the fact that "he does not move his limbs" because, in the case of a person who has not been decapitated, bodily movement, in and of itself, is an absolute sign of vitality. 
  Indeed, of necessity, the Mishnah must be construed as serving to establish the principle that motion constitutes a sufficient indicator of life. Were this not the primary thrust of the Mishnah, the explanatory phrase "even though they convulse …" would be entirely superfluous. Assuming, as we must, that, in accordance with <i>Yoma</i> 85a, the Mishnah recognizes that absence of respiration constitutes a necessary criterion of death, a decapitated animal would perforce be deemed to be dead were absence of respiration, in and of itself, a sufficient criterion of death since, obviously, a decapitated animal cannot breathe. Hence, a formulation of a distinction between vital and non-vital movement would be entirely superfluous. At most, the Mishnah might have incorporated an explanatory phrase to the effect that "even though they convulse they defile [as carrion] for respiration has ceased" without finding it necessary to stress that convulsive movement is not indicative of the presence of residual life forces. 
  It may further be argued that <i>Yoma</i> 85a does not serve to establish criteria of death independent of the criterion of death recorded in <i>Oholot</i> 1:6 with the effect that death is defined as either cessation of cardiac activity, as evidenced by absence of respiration, or as decapitation. Rather, it may be postulated that the essential criterion of death is cessation of all bodily movement. Thus, decapitation may be viewed, not as constituting death merely by reason of severance of the head from the body, but because decapitation causes cessation of all vital motion. As is evident from the explanatory phrase of the Mishnah in <i>Oholot</i>, were subsequent convulsive movements to be regarded as vital movement, decapitation, in and of itself, would not constitute death. Thus, the essential distinction between a living creature and a corpse is that the latter lies as an "inanimate stone." Accordingly, neither respiration nor cardiac activity need be viewed as a unique activity indicating the presence of life; rather, respiration and cardiac activity should be regarded merely as specific forms of bodily movement. Hence, whenever either cardiac or respiratory activity is present, the organism must be regarded as yet animate on the basis of bodily movement that is indicative of the presence of vital forces. 
  Placed in this context, Rashi's comment declaring that examination for signs of cardiac and respiratory activity is required only when the victim shows no evidence of movement and appears as an "inanimate stone" serves not only to qualify the discussion in <i>Yoma</i> 85a but also to provide the framework for a conceptual understanding of the criteria posited by <i>Yoma</i> 85a. Rashi's comment underscores the notion that bodily movement is the essential symptom of life and that whenever such motion is present the patient is <i>ipso facto</i> alive. <i>Yoma</i> 85a serves to establish that movement as an indicator of life is not restricted to gross motion of limbs, but includes the more subtle and spontaneous motion of the pulsating heart and respiring lungs as well. 
  This understanding of the absence of motion as the essential criterion of death yields an obvious distinction between physical removal of the heart and severance of the trachea. According to Hakham Ẓevi, life cannot persist subsequent to actual removal of the heart for the simple reason that continued vital motion becomes impossible. Although severance of the trachea results in a situation in which the heart is deemed to have been "placed in a basket," such determination is a halakhic construct and, as such, is germane only to matters of purely halakhic concern, viz., whether the heart is deemed to be integrated within the body or is deemed to be disassociated from the body. The question of whether an organism is alive or dead is not at all contingent upon a determination of whether the heart is deemed to be an integral part of the body. It is not removal of the heart <i>qua</i> removal that causes death, but the cessation of motion following closely in the wake of such removal that is the criterion of death. Hence, severance of the trachea may serve also to separate the heart from the body (rendering it as if "placed in a basket") for all matters pertaining to contiguity of the various organs; but severance of the trachea is irrelevant to a determination of the occurrence of death because the heart, although it may be deemed to have been "removed," nevertheless continues to perform all cardiac functions. Since the heart continues to beat normally, continued cardiac "movement" serves as an indicator that life is yet present. Hakham Ẓevi's thesis to the effect that no creature can survive without a heart must be understood as applying only to situations in which the heart is physically detached and removed from the body in a manner which prevents the heart from animating the body with the result that all bodily motion ebbs. Were the detached heart somehow capable of causing motion to persist in the body, there would be no reason to reach a determination that death has occurred. Precisely such a situation arises upon severance of the trachea. Halakhically, the heart may be viewed as detached, but, empirically, the organism remains capable of motion and hence the individual is deemed to be alive. Thus a gentile may not be invited to partake of the organs of a non-kosher animal which has been slaughtered, but which has not yet died, because the animal remains alive despite severance of the trachea. 
  This, then, is precisely the position espoused by the anonymous exponent of the first opinion cited by Rabbenu Nissim who maintains that perforation of the heart subsequent to severance of the trachea does not render the animal a <i>treifah</i>. According to that view, since the trachea has already been severed by the act of slaughter, perforation of a heart is tantamount to perforation of a heart already "placed in a basket" and no longer an integral part of the animal. Hence, perforation of the heart does not render the animal a <i>treifah</i>. Nevertheless, the animal is not deemed to have expired since the heart continues to function. Therefore, the animal is not regarded as carrion and the act of slaughter may be completed. If, however, the heart were to be completely severed from the body and physically removed prior to completion of the act of slaughter, i.e., prior to the severing of both trachea and the esophagus, the animal would indeed be deemed to be carrion. This is so since, by virtue of removal of the heart, the animal has, according to Hakham Ẓevi, been put to death prior to the completion of the act of slaughter. 
  Rabbenu Nissim himself disagrees with this position and asserts that the heart is never to be regarded "as if it had been placed in a basket." Rabbenu Nissim apparently reasons that recognition that the animal has, in fact, not died, as evidenced by the fact that the heart continues to pump blood through the circulatory system, logically entails acceptance of the position that the heart is not already "in a basket" but continues to function as an integral part of the organism. Hence, in the opinion of Rabbenu Nissim, so long as the heart remains attached to the body and functions as the animating force of the circulatory system, it is deemed to be an integral of the body even though it is no longer attached to the body by means of the trachea. According to Rabbenu Nissim, the heart cannot be deemed to have been "placed in a basket" so long as the circulatory system is operative. Hence, according to Rabbenu Nissim, perforation of the heart in such circumstances renders the animal a <i>treifah</i>. 
  This consideration obviously does not pertain in situations in which the heart has been completely detached and removed from the body cavity subsequent to severance of the trachea. According to the opinion cited by Me'iri, the identical considerations apply to the lungs as well and the animal is deemed to have succumbed immediately upon physical removal of the lungs. Thus, both positions recorded by Rabbenu Nissim, as well as the opinion cited by Me'iri, are entirely compatible with the thesis advanced by Hakham Ẓevi. 
  Acceptance of the explanation that the presence of cardiac activity is not a unique indicator of the presence of life, but rather that it is simply a form of movement indicative of the presence of vital forces, yields a significant point with regard to the status of a patient during surgery undertaken for implantation of an artificial heart. It has previously been established that only irreversible cessation of vital functions—as distinct from transitory, reversible cessation of such functions—is indicative of death. Since cardiac activity occupies no privileged position in the determination of death, and since it is not the mere presence of the heart or the function of the heart as a unique organ which is the essential indicator of life, but rather the "movement" of the heart as a form of integrated, vital movement of the organism which indicates that life is present, it follows that temporary cessation of cardiac activity during the course of a surgical procedure is neither cause nor evidence of death. In such procedures the integrated vital movements of the body are not permanently halted; they are merely temporarily interrupted. Since "movement" is indeed restored to the body and it is precisely integrated, vital movement which is the essence of life, whether such movement is produced by a natural heart or by an artificial organ is of no moment. So long as animation can be restored, life has not yet ebbed. Implantation of an artificial heart has the effect of restoring animation; the movement restored by means of implantation of an artificial heart is not mere convulsive motion but is vital in nature. 
  The conclusion that such motion is not mere <i>pirkus</i>, or convulsive movement, is evident from the comments of Rambam in his <i>Commentary on the Mishnah, Oholot</i> 1:6. Rambam distinguishes vital movement from convulsive movement by postulating that vital movement is "the motor force which diffuses throughout the limbs from a single root and source." It is clear that such integrated motion is manifested by the recipient of an artificial heart. To be sure, Hakham Ẓevi does declare that in the absence of a heart it is impossible for any creature to survive. However, it is certain that Hakham Ẓevi's comments must be understood as asserting only that it is impossible for any creature to live without an organ, or apparatus, which performs the functions normally associated with a heart. Hence, absent any indication of the existence of some other organ or device, the presence of a normal biological heart must be inferred and conclusively assumed. Accordingly, Hakham Ẓevi rules that there existed no basis for a conclusion that the chicken brought before him was a <i>treifah</i>. However, there is no reason to assume that Hakham Ẓevi would deny the possibility that life might be sustained by means of a trans-planted heart or by means of an artificial apparatus. Certainly, if it is "movement" in general, rather than cardiac movement specifically, which is the primary indicator of life, whether the source of that "movement" is natural or artificial is immaterial. The crucial point established by Hakham Ẓevi is that there is no life in the absence of integrated vital movement, and, conversely, whenever such "movement" is present, life exists. 
  VI
  The question which remains to be resolved is whether or not the recipient of either an artificial heart or a cadaver transplant is to be regarded as a <i>treifah</i>. A <i>treifah</i> is an animal or human being suffering the loss or perforation of certain organs. The condition may be the product of congenital anomaly or the result of trauma. Animals in the category of <i>treifah</i> are <i>ipso facto</i> non-kosher and their meat may not be consumed. In the case of a human being this question is of significance solely with regard to whether the murder of such a person is a capital crime since, in Jewish law, the murder of a <i>treifah</i> is a form of non-capital homicide. The Gemara, <i>Sanhedrin</i> 78a, declares:
  Our Sages taught: If ten men struck a man with ten staves, whether simultaneously or one after the other, and he died, they are not liable. R. Judah ben Batyra said, if one after the other, the last is culpable because he hastened [the victim's] death. R. Yoḥanan said: Both engaged in exegetical interpretation of the same verse, "and he that killeth <i>kol nefesh</i> [lit., 'all life'] of man shall surely be put to death" (Leviticus 24:17). The Sages maintain that <i>kol nefesh</i> limits [culpability] to [the taking of] the whole life; R. Judah ben Batyra maintains that <i>kol nefesh</i> [implies] whatever there is of life. 
  Raba said: All agree that one who kills a <i>treifah</i> is not liable: [and that] if he slew a person who is moribund (<i>goses)</i> by virtue of an act of God [lit., at the hands of Heaven] he is culpable. They disagree only with regard to a person who is moribund as a result of a human act [lit., at the hands of man]: One likens him to a <i>treifah</i> and [hence] his slayer is exempt, the other likens him to a person who is moribund by virtue of an act of God [lit., at the hands of Heaven] and [hence] his slayer is culpable. 
  In a three-part article which appeared in <i>Ha-Tzofeh</i> (8 Tevet, 15 Tevet and 22 Tevet, 5743), Rabbi Shlomoh Goren attempts to define the phrase "at the hands of Heaven" in a rather novel manner. Rabbi Goren argues that the term "at the hands of Heaven" as employed in <i>Sanhedrin</i> 78a is to be understood in precisely the same manner as it is understood in the context of an entirely unrelated discussion recorded in <i>Yevamot</i> 75b. The Gemara, <i>Yevamot</i> 75b, states that, although Scripture declares that a person who has "wounded testicles" is forbidden to engage in sexual intercourse (Deuteronomy 23:2), the prohibition is limited to wounds suffered "at the hands of man." However, one who has been wounded "at the hands of Heaven" is not subject to this restriction. Rashi and Rosh define the term "at the hands of Heaven" as connoting injuries suffered as a result of "thunder or hail" or a condition which is the result of congenital anomaly. However, Rambam, Hilkhot Issurei Bi'ah 16:9, states that the concept of an injury sustained "at the hands of Heaven" also encompasses damage sustained as a result of any illness or physiological disorder. This position is accepted by Shulḥan Arukh, Even ha-Ezer 5:10. Rabbi Goren states:
  According to the opinion of Rambam and those who follow his position, in every instance the severance of an organ as a result of disease in that organ is deemed to be a wound at the hands of Heaven and [the individual] is fit [to engage in intercourse]. But, according to the opinion of Rashi, since the surgical procedure and severance of the organ is performed at the hands of man, even though the removal is necessary by virtue of an illness at the hands of Heaven, the matter is considered as if it had occurred at the hands of man. The same is true with regard to our case, [viz.,] one who kills a person possessing an artificial heart. It has been demonstrated that one who kills a <i>treifah</i> at the hands of man is liable to capital punishment at the hands of the <i>Bet Din</i>, but the slayer of a <i>treifah</i> at the hands of Heaven is exempt from punishment by man but liable at the hands of Heaven. The same is true with regard to one who slays a person who possesses an artificial heart since the implantation is the result of a grave cardiac illness which arises in a natural manner at the hands of Heaven. According to the opinion of Rambam, one who slays [such an individual] is liable to the death penalty even at the hands of the Sanhedrin and is judged as an outright murderer. But, according to Rashi and Rosh and those who follow their opinion, one who slays a person possessing an artificial heart will be exonerated from the death penalty at the hands of the <i>Bet Din</i>…. 
  The view expressed by Rabbi Goren is obviously predicated upon the interpretation of Rambam's position advanced by <i>Teshuvot Hatam Sofer, Even ha-Ezer</i>, I, no. 17. According to <i>Hatam Sofer</i>, Rambam maintains that a surgeon's removal of the testes for therapeutic reasons is considered to be "wounding at the hands of Heaven." However, other authorities assert that, even according to Rambam, whenever removal of the testes is accomplished surgically, the "wounding" is deemed to be "at the hands of man" even if performed for therapeutic purposes.21<i class="footnote">For a fuller discussion of Rambam’s position, see above, pp. 151-153.</i>
  However, Rabbi Goren's position is subject to challenge on more fundamental grounds. The distinction drawn by the Gemara, <i>Yevamot</i> 75b, between a wound sustained "at the hands of man" and a wound sustained at the hands of Heaven is limited in application. That distinction serves to delineate the prohibition against sexual intercourse on the part of an individual who has sustained an injury to the genital organs but is of absolutely no import with regard to the distinction drawn in <i>Sanhedrin</i> 78a between a person rendered moribund "at the hands of man" and one rendered moribund "at the hands of Heaven." The distinction is entirely understandable with regard to the halakhic disabilities associated with wounds to the genitalia but lacks cogency with regard to culpability for the slaying of a moribund person. 
  <i>Sefer ha-Hinnukh</i>, no. 559, states that the prohibition against intercourse by a person wounded in the genital organs is designed to impose sanctions against those who would cause intentional damage to their sexual organs. It was the wont of monarchs in antiquity to emasculate servants in order to create eunuchs who were then placed in charge of the royal harems. Persons contemplating such a procedure would not be prepared to accept the onus of a stricture prohibiting intercourse and hence the effect of the prohibition is to prevent intentional damage to sexual organs. <i>Sefer ha-Hinnukh</i> concludes his comments with the statement that this explanation serves to illuminate the halakhic distinction between an individual who is wounded "at the hands of man" and one who is wounded "at the hands of Heaven." Since the purpose is to prevent intentional emasculation, no purpose would be served in extending the prohibition to persons wounded "at the hands of Heaven."
  In light of <i>Sefer ha-Hinnukh'</i>s exposition, Rambam's extension of the concept of wounding "at the hands of Heaven" to encompass injury to the genital organs sustained as a result of illness or disease (and, as understood by <i>Hatam Sofer</i>, even to surgical removal of the genital organs for therapeutic purposes) is readily understandable. Thus, according to this position, the primary distinction between a wound sustained "at the hands of man" and a wound sustained at "at the hands of Heaven" is a distinction between intentional injury designed to destroy reproductive capacity and unintentional, undesired injury born of illness or disease. Such considerations are entirely irrelevant to the definition of a <i>"goses</i> at the hands of man" as distinct from a "<i>goses</i> at the hands of Heaven."
  Moreover, the essence of the distinction between a "<i>goses</i> at the hands of man" and a "<i>goses</i> at the hands of Heaven" is expressly formulated by the Gemara, <i>Sanhedrin</i> 78a. In the discussion of the dispute between the Sages and R. Judah ben Batyra regarding ten men who struck a man with ten staves, the Gemara states:
  One likens him to a <i>treifah</i>, the other likens him to a person who is rendered moribund at the hands of Heaven. He who likens him to a <i>treifah</i>, why does he not liken him to a person rendered a <i>goses</i> at the hands of Heaven?—[Because] a <i>goses</i> at the hands of Heaven has not sustained an [injurious] act; but an [injurious] act has been done to this one. And he who likens him to a <i>goses</i> at the hands of Heaven, why does he not liken him to a <i>treifah</i>?—A <i>treifah</i> has his vital organs cut, but this one has not had his vital organs cut. 
  It is evident that the murderer of a <i>"goses</i> at the hands of Heaven" is liable to the death penalty because the <i>goses</i> is deemed to be fully alive even though moribund. In every case in which a life is destroyed by means of an act of murder it is only residual longevity which is extinguished. In every instance the residual longevity constitutes the entire life-complement of the victim. Destruction of such life-complement by a single aggressor constitutes homicide. Thus the murderer of a newly-born child and the murderer of an octogenarian are equally liable despite the disparate life-expectancy of the respective victims. Homicide is defined as the termination of human life through an act of man regardless of the life-expectancy of the victim. The murderer of a <i>"goses</i> at the hands of Heaven" is culpable because the moribund individual is yet alive and the brief life span available to him constitutes an entire life-complement insofar as the victim is concerned. Hence the murderer has deprived the victim of the latter's full longevity anticipation, brief as it may be. The murder of a <i>"goses</i> at the hands of man" is readily distinguishable. The culpability of the murderer of such an individual is a matter of dispute precisely because the perpetrator is not solely responsible for extinguishing the victim's full life-complement. Since the victim was already smitten by another aggressor, the last aggressor has not single-handedly deprived the victim of his natural life expectancy because "an act has been done to him." In such a case the life-complement has been destroyed as the result of the acts of multiple individuals. None of the perpetrators is liable to the death penalty since, according to the Sages, capital culpability exists only when a single aggressor destroys the entire life-complement of the victim. 
  It follows, therefore, that a gravely ill patient who is rendered moribund by a surgical procedure must be deemed a "<i>goses</i> at the hands of man," despite the therapeutic purpose of the procedure and the entirely laudable design of the surgeon. The murderer of such a patient has not deprived the victim of the latter's full life-complement since, in point of fact, an antecedent human act, viz., the surgical procedure, has contributed to the destruction of the patient's life-complement. The surgical procedure clearly constitutes a human act as a result of which the residual life is not deemed to be a "whole life." Hence it is absolutely clear that the culpability of the murderer of a person already rendered moribund (albeit unintentionally) by virtue of an unsuccessful medical procedure would fall within the ambit of the controversy between the Sages and R. Judah ben Batyra. 
  This point may also be established on the basis of the comments of Rosh, <i>Nazir</i> 4b. The Gemara declares that a Nazarite is not only forbidden to defile himself through tactile contact with a corpse but is also forbidden to touch a <i>goses</i>. Rosh declares that this prohibition is limited to contact with a "<i>goses</i> at the hands of Heaven" but does not include the touching of a "<i>goses</i> at the hands of man." <i>Teshuvot Hatam Sofer, Yoreh De'ah</i>, no. 338, explains that, according to Rosh, contact with a <i>goses</i> "at the hands of man" is not deemed to constitute defilement since a <i>goses</i> "at the hands of man" is not as close to death as is a <i>goses</i> "at the hands of Heaven." <i>Hatam Sofer</i> expresses amazement because this distinction, as drawn by Rosh, is the antithesis of the distinction drawn by the Gemara, <i>Sanhedrin</i> 78a, with regard to culpability for homicidal acts. Similarly, the author of the published marginal glosses on Rosh's commentary writes that the rationale underlying Rosh's distinction is that a <i>goses</i> "at the hands of man" is deemed to be endowed with a higher degree of vitality than is a <i>goses</i> "at the hands of Heaven." He then proceeds to question the cogency of Rosh's assessment since "according to the Sages, whose opinion is normative, a '<i>goses</i> at the hands of man' is deemed to be 'a dead person' which is not the case with regard to a '<i>goses</i> at the hands of Heaven.' "
  In an attempt to resolve this difficulty, R. Zevi Hirsch Chajes, in his commentary on <i>Nazir</i> 4a, states:
  A distinction must be made: With regard to capital punishment there is a statutory requirement as it is written, "<i>kol nefesh</i>, whatever there is of life," and hence [absence of culpability] is contingent upon an act, as Rashi explains <i>ad locum</i>. In the case of a "<i>goses</i> at the hands of man" an act was done to him antecedently and therefore one who kills him has killed a "dead person." This is not the case with regard to defilement, since it is predicated essentially upon death. Therefore, [with regard to a <i>"goses</i> at the hands of man"] there is the consideration that [the victim] may have swooned and does not yet defile. Whereas [with regard to a <i>goses</i>] "at the hands of Heaven," since there is no external causative act, therefore, once the illness has become so severe that [the patient] is moribund there is no longer any doubt that criteria of death are present. 
  It is clear from these comments that a greater degree of vitality is present in a "<i>goses</i> at the hands of man" than is present in a "<i>goses</i> at the hands of Heaven." This consideration notwithstanding, all are in agreement that one who slays a "<i>goses</i> at the hands of Heaven" commits a capital crime, whereas the Sages maintain that one who slays a "<i>goses</i> at the hands of man" is not liable to capital punishment. The reason for regarding a "<i>goses</i> at the hands of man" as lacking in "vitality" is that he has been the victim of an antecedent act of aggression which has resulted in diminished vitality. Since intent obviously plays no role in determination of the presence or absence of vitality, a victim rendered moribund as a result of a surgical trauma cannot be deemed to be a "<i>goses</i> at the hands of Heaven" and hence is not in the halakhic category of <i>"kol nefesh</i>—a whole life."
  Rabbi Goren's comments are even more puzzling in view of the fact that, although the Sages and R. Judah ben Batyra disagree with regard to the culpability of one who kills a "<i>goses</i> at the hands of man," with regard to the halakhic status of a <i>treifah</i> there is no distinction between one who is rendered a <i>treifah</i> "at the hands of man" and one who is rendered a <i>treifah</i> "at the hands of Heaven." As is reflected in the rulings of Rambam, <i>Hilkhot Evel</i> 4:5, and <i>Shulḥan Arukh, Yoreh De'ah</i> 339:1, a moribund person may acquire the status of a <i>goses</i> even though no organ is removed or perforated. A <i>treifah</i>, however, is defined not simply as one suffering from a terminal malady but as one suffering the loss or perforation of specific organs. The slayer of a <i>treifah</i> is exempt from capital punishment by virtue of statutory law which makes no distinction with regard to the source of such anomaly. 
  By definition, the recipient of a successful artificial heart implantation is not moribund and hence is not a <i>goses</i>. Nevetheless, such a person may be a <i>treifah</i>. Perforation of the heart renders the victim a <i>treifah</i> and, <i>a fortiori</i>, removal of the heart would render the patient a <i>treifah</i>. However, according to Rambam's definition of <i>treifah</i>, demonstrative success of artificial heart implantations coupled with anticipated survival for a significant period of time would serve to remove the recipients from the category of <i>treifah</i>. Rambam, <i>Hilkhot Sheḥitah</i> 10:12-13, rules that, with regard to animals, the criteria established by the Gemara delineating the various forms of <i>treifah</i> are immutable. However, with regard to capital homicide, Rambam, <i>Hilkhot Rozeaḥ</i> 2:8, rules:
  Every person is presumed to be complete and his murderer must be put to death unless it is known with certainty that he is a <i>treifah</i> and the physicians declare that this trauma has no cure by human agency and that he would die of it if he were not killed in some other way.
  Thus, according to Rambam, with regard to human beings, determination that the individual is a <i>treifah</i> is a matter of medical diagnosis. 
  There is little question that, at present, the recipient of an artificial heart must be considered a <i>treifah</i> even according to the opinion of Rambam. It is, however, entirely possible that, with the passsage of time and accompanying advances in medical technology, the recipient of an artificial heart may no longer be considered a <i>treifah</i>. Under such circumstances Rambam would maintain that the murderer of the recipient of an artificial heart would be liable to the death penalty. 
  
  Chapter IX Animal Experimentation
  
  <i>While our teacher Moses was tending the sheep of Jethro in the wilderness a kid ran away from him. He ran after it until it reached Hasuah. Upon reaching Hasuah it came upon a pool of water [whereupon] the kid stopped to drink. When Moses reached it he said, "I did not know that you were running because [you were] thirsty. You must be tired." He placed it on his shoulder and began to walk. The Holy One, blessed be He, said, "You are compassionate in leading flocks belonging to mortals; I swear you will similarly shepherd my flock, Israel."</i>
  MIDRASH RABBAH, SHEMOT 2:2
  I. Concern for Welfare of Animals
  In a provocative comment, the German philosopher Arthur Schopenhauer remarked that the denial of rights to animals is a doctrine peculiar to Western civilization and reflects a barbarianism which has its roots in Judaism: "Die vermeintliche Rechtlosigkeit der Tiere ist geradezu eine empörende Rohheit und Barberei des Okzidents, deren Quelle im Judentum liegt."1<i class="footnote"><i>Die Beiden Grundprobleme der Ethik</i> (Frankfurt a.M., 1841), pp. 243-44. For an English translation see Arthur Schopenhauer, <i>The Basis of Morality</i>, translated by Arthur B. Bullock (London, 1915), p. 218. See also Arthur Schopenhauer, <i>The World as Will and Representation</i>, translated by E. F. J. Payne (New York, 1957), II, 645.</i>
  Whether denial of rights to animals is, or is not, barbaric is a value judgment regarding which reasonable men may differ. Whether or not Judaism actually denies such rights to animals is a factual matter which is readily discernible. The Bible abounds in passages which reflect concern for animal welfare. Concern for the welfare of animals is clearly regarded as the trait of a righteous person: "A righteous man regardeth the life of his beast; but the tender mercies of the wicked are cruel" (Proverbs 12:10). Divine concern for the welfare of animals is reflected in numerous passages: "And His tender mercies are over all His works" (Psalms 145:9); "The eyes of all wait for Thee, and Thou givest them their food in due season. Thou openest Thy hand and satisfiest every living thing with favor" (Psalms 145:15-16); "He giveth to the beast his food, and to the young ravens which cry" (Psalms 147:9); "Who provides for the raven his prey, when his young ones cry unto God and wander for lack of food?" (Job 38:41); "… and should not I have pity on Nineveh, that great city, wherein are more than six score thousand persons … and also much cattle?" (Jonah 4:11); and "Man and beast thou preservest, O Lord" (Psalms 36:7). <i>De minimis</i>, these verses serve to establish the theological proposition that divine mercy extends, not only to man, but to members of the animal kingdom as well. 
  It further follows that, as a religion in which <i>imitatio Dei</i> serves as a governing moral principle,2<i class="footnote">The obligation of <i>imitatio Dei</i> is derived from the verse “and thou shalt walk in His ways” (Deuteronomy 28:9). See Rambam, <i>Hilkhot De‘ot</i> 1:5-6.</i> Judaism must perforce view compassion towards animals as a moral imperative. It is told variously of one or another of the leading exponents of the <i>Musar</i> movement that he kept a cat as a pet and insisted upon feeding the cat personally. That individual is reported to have remarked to his disciples that his motivation was simply to emulate divine conduct. Since God extends "His tender mercies over all His works" (Psalms 145:9), man should eagerly seek opportunities to do likewise. The story is perhaps apocryphal in nature but remarkable nonetheless because of its wide currency in rabbinic circles.3<i class="footnote">See also narratives concerning R. Eliyahu Lapian recounted by Aaron Soraski. <i>Marbiẓei Torah u-Musar</i> (Brooklyn, 5737), IV, 165, and concerning <i>Ḥazon Ish</i> by R. Shlomoh Cohen, <i>Pe’er ha-Dor</i> (Bnei Brak, 5726), I, 175. It is told of the hasidic master, R. Zusya of Anapole, that, saddened by the sight of caged birds, he would purchase them from their owner in order to set them free. He informed his disciples that he regarded this to be a form of “ransoming prisoners” which constitutes a moral imperative.</i>
  These sources, however, serve only to demonstrate that animal-directed conduct which is compassionate in nature constitutes a "good deed" but do not serve to establish a system of normative duties or responsibilities. Particularly in light of the strong nomistic element present in Judaism, the absence of normative regulations might well be regarded as indicative of the absence of serious ethical concern for the welfare of members of the animal kingdom. But this is demonstrably not the case, for, in Jewish teaching, there is no dearth of <i>nomoi</i> designed to protect and promote animal welfare. The most obvious example of a regulation having such an effect, and one which is clearly biblical in origin, is contained in the verse "If thou seest the ass of him that hateth thee lying under its burden, thou shalt forebear to pass by him; thou shalt surely release it with him" (Exodus 23:5). The selfsame concern is manifest in the prohibition against muzzling an ox while it threshes in order that the animal be free to eat of the produce while working (Deuteronomy 25:4). Similarly, Scripture provides that both domestic animals and wild beasts must be permitted to share in produce of the land which grows without cultivation during the sabbatical year.4<i class="footnote">See Me’iri, <i>Baba Meẓi‘a</i> 33a, and <i>Sefer ha-Ḥinnukh</i>, no. 596. The purpose of other biblical laws pertaining to animals in less clear-cut. The prohibition against plowing with animals of different species, recorded in Deuteronomy 22:10, is understood by <i>Sefer ha-Ḥinnukh</i>, no. 550, as well as by <i>Da‘at Zekenim mi-Ba’alei ha-Tosafot</i> and <i>Ba’al ha-Turim</i> in their respective commentaries on Deuteronomy 22:10, as rooted in considerations of prevention of cruelty to animals, but is understood in an entirely different manner by Rambam, <i>Guide of the Perplexed</i>, Book III, chapter 49, as well as by Ramban in his commentary on Deuteronomy 22:10. However, Rambam, <i>Guide</i>, Book III, chapter 48, regards the prohibition against slaughtering an animal and its young on the same day, recorded in Leviticus 22:28, as a precautionary measure designed to prevent the slaughter of the offspring in the presence of its parent. The underlying concern is to spare the mother the anguish of seeing her young killed before her eyes “for in these cases animals feel very great pain, there being no difference regarding this pain between man and the other animals. For the love and the tenderness of a mother for her child is not consequent upon reason, but upon the activity of the imaginative faculty, which is found in most animals just as it is found in man.” Here, Rambam speaks of concern for the welfare of the animal rather than for the moral character of the human agent; see below, notes 14-15 and accompanying text. This interpretation is reflected in the comments of R. Baḥya ben Asher, Leviticus 22:28, and, in part, in <i>Sefer ha-Ḥinnukh</i>, no. 294. <i>Sefer ha-Ḥinnukh</i> regards the commandment prohibiting the slaughter of an animal and its young on the same day as designed both to spare the parent from anguish and as a conservation measure as well. See also Abarbanel’s <i>Commentary on the Bible, ad locum</i>. Rambam’s analysis of the rationale underlying this precept is rejected by Ramban in his <i>Commentary on the Bible</i>, Deuteronomy 22:6. According to Ramban, the concern is not to avoid pain to the animal but to purge man of callousness, cruelty and savagery.Although the Gemara, <i>Baba Meẓi‘a</i> 32a, declares that assistance in unloading a burden from an animal is mandated by reason of <i>ẓa’ar ba’alei ḥayyim</i> but that the obligation to assist in loading the burden upon the animal is not independently mandated by reason of <i>ẓa‘ar ba’alei ḥayyim</i>, Ritva, cited by <i>Shitah Mekubeẓet, Baba Meẓi‘a</i> 31a, <i>s.v. aval te’inah</i>, asserts that the commandment requiring a person to render assistance to another who is engaged in loading an animal is predicated upon considerations of <i>ẓa‘ar ba’alei ḥayyim</i>. According to Ritva, a single person engaged in this task is likely to cause additional discomfort to the animal by applying the full force of his body weight whereas, when he is assisted by another, there is no need to apply similar pressure.<i>Sefer ha-Ḥinnukh</i>, no. 186, is of the opinion that the prohibition against the slaughter of sanctified animals outside the Temple precincts is rooted in considerations of <i>ẓa‘ar ba’alei ḥayyim</i>. According to <i>Sefer ha-Ḥinnukh</i>, such slaughter is forbidden because no purpose is served thereby and hence constitutes <i>ẓa‘ar ba’alei ḥayyim</i>. See below, note 29.Neither the prohibition against mating animals of different species, Leviticus 19:19, nor the prohibition against emasculation of animals, Leviticus 22:24, is understood by classical rabbinic scholars as rooted in considerations of animal welfare. For a discussion of animal welfare as a possible rationale associated with other commandments, see R. Joel Schwartz, <i>Ve-Raḥamav al Kol Ma’asav</i> (Jerusalem, 5744), pp. 11-16.</i> Although the literal meaning of the biblical text may be somewhat obscure, talmudic exegesis understands Genesis 9:4 and Deuteronomy 12:23 as forbidding the eating of a limb severed from a living animal. Jewish law teaches that this prohibition, unlike most other commandments, is universally binding upon all peoples as one of the Seven Commandments of the Sons of Noah. Sabbath laws contained in both formulations of the Decalogue reflect a concern which goes beyond the mere elimination of pain and discomfort and serve to promote the welfare of animals in a positive manner by providing for their rest on the Sabbath day: "But the seventh day is a Sabbath unto the Lord thy God, on it thou shalt not do any manner of work … nor thine ox, nor thine ass, nor any of thy cattle …" (Deuteronomy 5:14). Even more explicit in expressing concern for the welfare of animals is the verse "… but on the seventh day thou shalt rest; that thine ox and thine ass may have rest" (Exodus 23:12).5<i class="footnote">The requirement that the parent bird be released before the young are taken and the concomitant prohibition against taking both the parent and the young, recorded in Deuteronomy 22:6-7, quite obviously have the effect of sparing the parent from anguish. The Mishnah, <i>Berakhot</i> 33b, however, does not view this desideratum, laudable as it may be, as the underlying purpose of the commandment. Cf., however, Rambam, <i>Guide</i>, Book III, chapter 48; Ramban, <i>Commentary on the Bible</i>, Deuteronomy 22:6; and <i>Sefer ha-Ḥinnukh</i>, no. 545.</i>
  Judaism posits yet another regulation regarding the welfare of animals which is regarded as biblical in nature even though the law is not reflected in a literal reading of Scripture. The biblical statement "I will give grass in thy fields for thy cattle, and thou shall eat and be satisfied" (Deuteronomy 11:15) is understood in rabbinic exegesis as forbidding a person to partake of any food unless he has first fed his animals.6<i class="footnote">See <i>Berakhot</i> 41a and <i>Gittin</i> 62a. See also Rambam, <i>Hilkhot Avadim</i> 9:8; R. Meir Rothenberg, <i>Teshuvot Maharam ben Barukh he-Ḥadashhot</i>, no. 302; R. Jacob Reisher, <i>Teshuvot Shevut Ya‘akov</i>, II, no. 13; <i>Magen Avraham, Oraḥ Ḥayyim</i> 167:18 and 271:12; <i>Ḥayyei Adam</i> 45:1, and R. Joel Schwartz, <i>Ve-Raḥamav al Kol Ma’asav</i>, pp. 59-62. R. Jacob Emden, <i>She’elat Ya‘ave&amp;x1E93;</i>, 1, no. 17, rules that there is no absolute requirement to feed a dog or a cat before eating oneself since those animals sustain themselves on table scraps and forage for foods but that it is nevertheless proper to feed them first in order “to acquire the trait of compassion.” <i>Magen Avraham, Oraḥ, Ḥayyim</i> 324:7, declares that providing food for any animal, including animals belonging to other persons and ownerless animals, constitutes a <i>miẓvah</i>. See also R. Simeon ben Ẓemaḥ Duran, <i>Teshuvot Tashbaẓ</i>, III, no. 293; R. Jacob Ettlinger, <i>Teshuvot Binyan Ẓion</i>, no. 103; and R. Eliyahu Klatzkin, <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 1. Cf. R. Moses Sofer, <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 314, <i>s.v</i>. <i>ve-la’asot</i>, and no. 318, <i>s.v. ve-hinneh</i>.</i> This regulation is derived from the order in which the two clauses comprising the verse are recorded. The passage speaks first of providing for animals and only subsequently of satisfying human needs.7<i class="footnote">Similarly, Scripture records that Laban gave straw to the camels and only afterwards did he provide food for Abraham’s servant. See Genesis 24:32-33 and <i>Sefer Ḥasidim</i> (ed. Reuben Margulies), no. 531. Cf., R. Joel Schwartz, <i>Ve-Raḥamav al Kol Ma’asav</i>, p. 60, note 4.</i> Amplifying this rule, the Palestinian Talmud, <i>Yevamot</i> 15:3 and <i>Ketubot</i> 4:8, declares that a person is forbidden to purchase an animal unless he can assure an adequate supply of food on its behalf. 
  Nevertheless, it does not necessarily follow that a general obligation to be kind to animals or, minimally, a duty to refrain from cruelty to animals, can be inferred from any of these biblical regulations or even from all of them collectively. These regulations have been understood by some Sages of the Talmud as establishing particular duties, not as expressions of a more general duty. Nor is it demonstrably certain that even these limited and particular duties are designed primarily for the purpose of promoting the welfare of animals. Even with regard to the particular duty concerning removing the burden borne by a beast, the commandment does not necessarily reflect concern for the welfare of the animal. The obligation to release the ass from its burden (Exodus 23:5), i.e., to assist the owner in unloading merchandise or materials carried by a beast of burden, and the similar obligation to come to the assistance of a fallen animal (Deuteronomy 22:4) are understood by many classical commentators as duties rooted in a concern for the financial loss which would be suffered by the animal's master were the animal to collapse under the weight of the burden. Thus, in formulating the rationale underlying this commandment, R. Aaron ha-Levi of Barcelona, <i>Sefer ha-Hinnukh</i>, no. 80, declares:
  The root purpose of the precept is to educate our spirit in the trait of compassion, which is laudable. It is unnecessary to state that a duty lies on us to take pity on a person suffering physical pain;8<i class="footnote">The same authority, <i>Sefer ha-Ḥinnukh</i>, no. 540, asserts that the obligation to come to the assistance of an animal that has fallen applies equally with regard to assisting a person who is overladen. See also Rambam, <i>Sefer ha-Miẓvot, miẓvot aseh</i>, no. 203 and <i>miẓvot lo ta‘aseh</i>, no. 270. This is also the position of R. Solomon ben Adret, <i>Teshuvot ha-Rashba</i>, 1, nos. 252, 256 and 257. Cf., however, R. David ibn Zimra, <i>Teshuvot ha-Radbaz</i>, 1, no. 728 and R. Ya’ir Chaim Bacharach, <i>Teshuvot Ḥavot Ya’ir</i>, no. 191.</i> however, it is incumbent upon us to pity and rescue even a person who is in distress because of the loss of his money. 
  Yet, Judaism most certainly <i>does</i> posit an unequivocal prohibition against causing cruelty to animals. The Gemara, <i>Baba Mezi'a</i> 32b, carefully defines the limits of the obligation to assist in "unloading" the burden carried by an animal but hastens to add that assistance not emcompassed within the ambit of the commandment concerning "unloading" (<i>perikah</i>) is required by virtue of a general biblical principle prohibiting cruelty to animals and requiring that measures be taken to alleviate <i>"za'ar ba'alei ḥayyim</i>—the pain of living creatures." Thus, for example, the commandment concerning "unloading" imposes no obligation in a situation in which an inordinate burden has been placed upon the animal. This exclusion may readily be understood in light of the earlier-cited analysis of <i>Sefer ha-Hinnukh</i>. Since the master has brought the impending loss upon himself by reason of his own imprudence, there is no obligation to come to his aid. However, assistance is nevertheless required by virtue of the obligation owed to the animal. The Gemara proceeds to indicate that proper categorization of the nature of the obligation is not of mere theoretical interest but yields a practical distinction. No fee may be demanded for assisting in unloading an animal when such assistance is required by the commandment concerning "unloading," i.e., when the concern is conservation of property; however, compensation may be required if the sole consideration is for the welfare of the animal.9<i class="footnote">For a full analysis, see commentary of Rabbenu Nissim, <i>ad locum</i>, and R. Joseph Babad, <i>Minḥat Ḥinnukh</i>, no. 80.</i>
  The source of the obligation concerning <i>za'ar ba'alei ḥayyim</i> which imposes a general concern for the welfare of animals is far from clear. Indeed, the Gemara, <i>Baba Mezi'a</i> 32b, cites a dispute with regard to whether the obligation with regard to <i>za'ar ba'alei ḥayyim</i> is biblical or rabbinic in nature.10<i class="footnote">Whether <i>ẓa‘ar ba‘alei ḥayyim</i> is prohibited by virtue of biblical or of rabbinic law is of no significance whatsoever insofar as the normative regulations prohibiting overt acts of cruelty vis-à-vis animals are concerned. There are, however, a number of distinctions, albeit most of which are currently of relatively minor impact, with regard to the duty to intervene in order to relieve or prevent animal suffering. The most obvious distinctions are those posited by the Gemara, <i>Baba Meẓi‘a</i> 33a: “[If thou seest the ass of him that hateth thee lying under its burden] ‘lying’ [just now], but not an animal which habitually lies down [under its burden]; ‘lying,’ but not standing.” The Gemara then queries, “If you say that [relieving the suffering of an animal] is biblically [enjoined] what does it matter whether it was lying [this once only], habitually lay down or was standing?” and concludes that such distinctions are cogent only if <i>ẓa‘ar ba‘alei ḥayyim</i> is the subject of rabbinic enactment,but that such exclusions from the duty to relieve animals from pain cannot be entertained if <i>ẓa‘ar ba‘alei ḥayyim</i> is a matter of biblical law. Indeed, it is Rambam’s failure to make such distinctions which, in part, prompts <i>Kesef Mishneh, Hilkhot Roẓeah</i> 13:9, to conclude that Rambam maintains that <i>ẓa‘ar ba‘alei ḥayyim</i> is biblically enjoined. On the basis of the discussion recorded in <i>Baba Meẓi‘a</i> 33a, <i>Minḥat Ḥinnukh</i>, no. 80, concludes that intervention to rescue an animal from pain is mandated only if <i>ẓa‘ar ba’alei ḥayyim</i> is mandated by biblical law, whereas, if ẓa‘ar <i>ba’alei ḥayyim</i> is the subject of rabbinic decree, such legislation only prohibits acts of cruelty but does not command intervention. See below, note 11. See also Mahari Perla, Commentary on <i>Sefer ha-Miẓvot</i> of R. Sa’adia Ga’on, <i>aseh</i> 24, <i>s.v. ve-adayin ẓarikh</i>. [Cf., however, R. Moses Sofer, <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 314, <i>s.v. ve-la‘asot</i>, and no. 318, <i>s.v</i>. <i>ve-hinneh</i>, who apparently maintains that the obligation to rescue an animal from pain is limited to one’s own animals. See also <i>Teshuvot Ḥatam Sofer, Ḥoshen Mishpat</i>, no. 185, <i>s.v</i>. <i>ma she-katavta me-Rabad</i>. Thus, <i>Ḥatam Sofer</i> maintains that, although an overt act of cruelty toward any animal is forbidden, one may allow an ownerless animal to starve. See, however, R. Ezekiel Landau, <i>Teshuvot Noda bi-Yehudah, Mahadura Kamma, Yoreh De‘ah</i>, nos. 81-83, who fails to draw a distinction of this nature. See also <i>Kiẓur Shulḥan Arukh</i> 191:1 and sources cited by R. Eliyahu Klatzkin, <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 1.] Another distinction is found in the application of certain Sabbath restrictions. If it is accepted that obligations with regard to <i>ẓa‘ar ba‘alei ḥayyim</i> are biblical in origin, a non-Jew may be requested to perform acts of labor on the Sabbath, e.g., milking a cow, in order to relieve the animal’s discomfort and certain specific rabbinically proscribed acts may also be performed even by a Jew in order to alleviate the animal’s pain; but no suspension of Sabbath restrictions is countenanced if duties with regard to <i>ẓa‘ar ba‘alei ḥayyim</i> are the product of rabbinic enactment. See Ritva, <i>Baba Meẓi‘a</i> 32b, as well as Rosh, <i>Baba Meẓi‘a</i> 2:29 and <i>Shabbat</i> 18:3; see also <i>Magen Avraham, Oraẓ Ḥayyim</i> 305:11, and <i>Korban Netanel, Shabbat</i> 18:3, sec. 50. [Cf., however, <i>Teshuvot Rav Pe’alim</i>, 1, <i>Yoreh De‘ah</i>, no. 1, who maintains that such actions are permitted only when the life of the animal is endangered. Failure to milk a cow, he asserts, endangers the animal.] There is some controversy with regard to whether a non-Jew may be directed to perform a rabbinically proscribed act; see <i>Encyclopedia Talmudit</i>, II, 45. According to the authorities who adopt a permissive position with regard to this question, such a procedure would be permissible with regard to <i>ẓa‘ar ba‘alei ḥayyim</i> as well, were it accepted that regulations concerning <i>ẓa‘ar ba‘alei ḥayyim</i> are rabbinic in nature. [The citation of <i>Pilpula Ḥarifta, Baba Meẓi‘a</i> 2:29, in this context by R. Ze’ev Metzger in his useful survey, “Nisuyim Refu’iyim be-Ba‘alei Hayyim,” <i>Ha-Refu’ah le-Or ha-Halakhah</i>, vol. II (Jerusalem, 5743), part 3, p. 11, appears to be inaccurate.] See also below, note 52.</i> As has been indicated, if biblical in nature,11<i class="footnote">It is the virtually unaminous opinion of rabbinic decisors that obligations with regard to <i>ẓa‘ar ba‘alei ḥayyim</i> are biblical in nature. See Rif, <i>Shabbat</i> 128b; <i>Sefer ha-Ḥinnukh</i>, no. 450 and no. 451; Rosh, <i>Baba Meẓi‘a</i> 2:29 and <i>Shabbat</i> 3:18; <i>Nimmukei Yosef, Baba Meẓi‘a</i> 32b; Me’iri, <i>Baba Meẓi‘a</i> 32b; <i>Shitah Mekubeẓet, Baba Meẓi‘a</i> 33a; <i>Sefer Yere’im</i>, no. 267; <i>Sefer Ḥasidim</i> (ed. Reuben Margulies), no. 666; Rema, <i>Ḥoshen Mishpat</i> 272:9; <i>Levush, Oraḥ Ḥayyim</i> 305:18; and <i>Magen Avraham, Oraḥ Ḥayyim</i> 305:11.Rambam, both in his <i>Commentary on the Mishnah, Beiẓah</i> 3:4, and in the <i>Guide</i>, Book III, chapter 17, affirms that the prohibition against <i>ẓa‘ar ba‘alei ḥayyim</i> is biblical in origin. There is some dispute regarding the proper understanding of the position adopted by Rambam in his <i>Mishneh Torah</i>. Although in <i>Hilkhot Shabbat</i> 25:26 Rambam appears to adopt the identical position, the language employed in <i>Hilkhot Roẓeaḥ</i> 13:9 is somewhat ambiguous. Nevertheless, <i>Kesef Mishneh, ad locum</i>, understands even the latter source as consistent with the view that the prohibition against <i>ẓa‘ar ba‘alei ḥayyim</i> is biblical in nature. However, <i>Pnei Yehoshu’a, Baba Meẓi‘a</i> 32b, and R. Elijah of Vilna, both in his <i>Hagahot ha-Gra al ha-Rosh, Baba Meẓi‘a</i> chapter 2, sec. 29;1, and in his <i>Bi‘ur ha-Gra, Ḥoshen Mishpat</i> 272:11, understand Rambam’s ruling in <i>Hilkhot Roẓeah</i> as reflecting the view that these strictures are rabbinic in nature. See also <i>Minḥat Ḥinnukh</i>, no. 80.<i>Pri Megadim, Oraḥ Ḥayyim, Eshel Avraham</i> 308:68, and R. Meir Simchah ha-Kohen of Dvinsk, <i>Or Sameaḥ</i>, <i>Hilkhot Shabbat</i> 25:26, both resolve any apparent contradiction in Rambam’s rulings by asserting that in <i>Hilkhot Shabbat</i> Rambam’s intention is only to affirm the biblical nature of the obligation concerning the requirement that animals be permitted to rest on the Sabbath and that it is that biblical law which prompted suspension of certain rabbinic restrictions regarding Sabbath regulations in order to prevent suffering by animals on the Sabbath. In comments which are at variance with his own heretofore cited thesis, <i>Or Sameaḥ, Hilkhot Roẓeaḥ</i> 13:9, offers a novel analysis of Rambam’s position. <i>Or Sameaḥ</i> here asserts that Rambam affirms the biblical nature of strictures against <i>ẓa‘ar ba’alei ḥayyim</i>, but that Rambam distinguishes between practicing cruelty toward animals, which is forbidden, and intervention in an overt manner to spare the animal from discomfort. According to these comments of <i>Or Sameaḥ</i>, Rambam maintains that such intervention is not mandated. Rambam reasons, avers <i>Or Sameaḥ</i>, that there is no prohibition against causing discomfort to an animal in order to satisfy a human need; similarly, argues <i>Or Sameaḥ</i>, there is no requirement that a person discomfit himself in order to promote the welfare of an animal. See also R. Jacob Kamenetsky, <i>Iyyunim be-Mikra</i> (New York, 5744), Numbers 22:32.<i>Mordekhai, Baba Meẓi‘a</i> 2:263, rules that <i>ẓa‘ar ba‘alei ḥayyim</i> is biblically enjoined, but, in his work on <i>Avodah Zarah</i> 1:799, the same authority rules that such strictures are rabbinic in nature. <i>Ḥiddushei Anshei Shem, Baba Meẓi‘a</i>, sec. 20, endeavors to resolve the contradiction by asserting that, according to <i>Mordekhai</i>, “grave pain” <i>(ẓa‘ar gadol)</i> involves a biblical prohibition whereas “minor pain” <i>(ẓa‘ar mu’at)</i> involves only a rabbinic injunction. It is noteworthy that, according to the <i>Ḥiddushei Anshei Shem</i>, causing an animal to die of starvation involves only “minor pain,” whereas killing an animal in an overt manner is categorized as entailing “grave pain.” [See, however, R. Jacob Ettlinger, <i>Teshuvot Binyan Ẓion</i>, no. 108, who states that “perhaps” causing an animal to die of starvation entails “grave pain.”] <i>Nimukei Yosef, Baba Meẓi‘a</i> 32b, quite independently draws a similar distinction between “grave pain” and “minor pain” without in any way referring to Rambam’s statements. According to <i>Nimukei Yosef</i>, “minor pain” is the subject of rabbinic injunction while “grave pain” is biblically proscribed. See also Ritva, <i>Avodah Zarah</i> 11a.As will be shown later, a latter-day authority, R. Jacob Ettlinger, <i>Teshuvot Binyan Ẓion</i>, no. 108, permits causing an animal “grave pain” only for purposes of human medical needs but permits “minor pain” even for lesser reasons, at least insofar as normative law is concerned.</i> according to most authorities, this duty is not directly derived from the obligation of "unloading." One notable exception is Rashi, <i>Shabbat</i> 128b. Rashi states that, according to those Sages of the Talmud who maintain that binding regulations may be inferred from the rationale underlying precepts, obligations concerning <i>za'ar ba'alei ḥayyim</i> are directly derived from the verse "thou shalt surely release it with him" (Exodus 23:5).12<i class="footnote">See also Rabad, quoted in <i>Shitah Mekubeẓet, Baba Meẓi‘a</i> 32b, <i>s.v. teda</i>, and <i>Levush, Oraḥ Ḥayyim</i> 305:18. If obligations concerning <i>ẓa‘ar ba‘alei ḥayyim</i> are derived from the commandment concerning “unloading” it would certainly seem to follow that this obligation is not limited to a prohibition against cruelty but includes a positive obligation to intervene in order to rescue from pain. See R. Joel Schwartz, <i>Ve-Raḥamav al Kol Ma’asav</i>, p. 43, note 3, and cf., above, note 10.</i> Rambam, <i>Guide of the Perplexed</i>, Book III, chapter 17, and R. Judah he-Hasid, <i>Sefer Hasidim</i> (ed. Reuben Margulies), no. 666, regard the biblical narrative concerning Balaam and his ass as the source of the biblical prohibition against cruelty toward animals. These authorities indicate that the verse "And the angel of the Lord said unto him: 'Wherefore hast thou smitten thine ass these three times?' " (Numbers 22:32) serves to establish a prohibition against conduct of that nature.13<i class="footnote">See below, note 43.</i> Me'iri, <i>Baba Mezi'a</i> 32b, is of the opinion that obligations concerning <i>za'ar ba'alei ḥayyim</i> are derived from the prohibition against muzzling an ox while it is engaged in threshing (Deuteronomy 25:4). <i>Shitah Mekubezet, Baba Mezi'a</i> 32b, suggests that these obligations may either be derived from the prohibition against muzzling an ox engaged in threshing or, alternatively, <i>za'ar ba'alei ḥayyim</i> may simply be the subject of <i>halakhah le-Mosheh mi-Sinai</i>, i.e., an oral teaching transmitted to Moses at Mount Sinai with no accompanying written record in the Pentateuch.14<i class="footnote">See also <i>Minḥat Ḥinnukh</i>, no. 80</i>
  Other scholars advance less obvious sources as constituting the scriptural basis for obligations concerning <i>za'ar ba'alei ḥayyim</i>. R. Moses ibn Habib, <i>Yom Teru'ah, Rosh ha-Shanah</i> 27a, finds a source for such obligations in the verse "… and thou shalt bring forth to them water out of the rock; so thou shalt give the congregation and their cattle drink" (Numbers 20:8). Water was miraculously produced from the rock for the benefit of animals as well as of humans. Water was produced for the animals, states R. Moses ibn Habib, in order to obviate <i>za'ar ba'alei ḥayyim</i>. In the opinion of this authority, Scripture specifically records that the miracle was performed on behalf of animals as an admonition to man directing him likewise to alleviate the suffering of brute creatures. R. Moses Sofer, <i>Hagahot Hatam Sofer, Baba Mezi'a</i> 32b, similarly regards obligations with regard to animal welfare as predicated upon emulation of divine conduct. Thus <i>Hatam Sofer</i> cites the verse "And His tender mercies are over all His works" (Psalms 145:9) as imposing an obligation upon man to exercise compassion toward animals. Earlier, <i>Sefer Haredim</i>, chapter 4, expressed the opinion that compassion toward animals is mandated by the commandment "and you shall walk in His ways" (Deuteronomy 28:9). Rambam, <i>Hilkhot De'ot</i> 1:6, apparently basing himself upon <i>Sifre</i>, Deuteronomy 11:22, renders the verse as meaning, "just as He is merciful so also shall you be merciful."
  It is nevertheless probably incorrect to conclude that concern for <i>za'ar ba'alei ḥayyim</i> is predicated upon a legal or moral concept of animal "rights." Certainly, in Jewish law no less than in other systems of law, neither the animal nor its guardian is granted <i>persona standi in judicio</i>, i.e., the animal lacks capacity to institute judicial proceedings to prevent others from engaging in acts of cruelty of which it may be the victim. This is so despite the unique provision in Jewish law to the effect that an animal that has committed an act of manslaughter is subject to criminal penalty but is entitled to due process of law, including a right analogous to the Sixth Amendment right of confrontation, viz., the requirement that the proceedings take place only in the presence of the accused animal. 
  In all likelihood, the rationale governing strictures against <i>za'ar ba'alei ḥayyim</i> is concern for the moral welfare of the human agent rather than concern for the physical welfare of the animals, i.e., the underlying concern is the need to purge inclinations of cruelty and to develop compassion in human beings.15<i class="footnote">It must, however, be noted that, even with regard to rights enjoyed by humans, the emphasis in Jewish law is upon the notion of “duty” rather than “right.” Thus, satisfaction of a debt is actionable, not primarily as enforcement of the creditor’s right, but as a means of compelling fulfillment of the religio-moral obligation of the debtor. In all matters of jurisprudence, the emphasis is upon prevention of moral degeneration attendant upon the misappropriation of property belonging to another, rather than upon satisfaction of the claim of the rightful owner. In adjudicating claims between litigants, the <i>Bet Din</i> acts, as is its duty, primarily to compel fulfillment of a religio-moral duty rather than to redress a wrong. See Moshe Silberg, “Law and Morals in Jewish Jurisprudence,” <i>Harvard Law Review</i>, LXXV (1961-1962), 306-31. Proper comportment vis-à-vis animals would similarly be compelled by the court as the fulfillment of a religious obligation.</i> This is certainly the position taken by many early authorities in their discussion of the rationale underlying specific commandments dealing with comportment vis-à-vis animals. Thus, in discussing the prohibition against muzzling an animal while it is engaged in threshing, <i>Sefer ha-Hinnukh</i>, no. 596, writes:
  The root purpose of the precept is to teach ourselves that our soul be beautiful, choosing fairness and cleaving to it, and that [our soul] pursue loving kindness and mercy. In habituating [our soul] to this even with regard to animals, which were not created other than to serve us, to be mindful of them in granting them a portion of the travail of their flesh, the soul acquires a propensity for this habit to do good to human beings and to watch over them lest he cross the boundary with regard to anything which is proper with regard to them and to compensate them for any good they perform and to satiate them with whatever they travail. This is the path which is proper for the holy, chosen people. 
  In a similar vein, Rambam, <i>Guide of the Perplexed</i>, Book III, chapter 48, declares, "The reason for the prohibition against eating a limb [cut from] a living animal is because this would make one acquire the habit of cruelty." Rambam, <i>Guide</i>, Book III, chapter 17, makes the same observation with regard to the general obligation with regard to <i>za'ar ba'alei ḥayyim</i> in stating that that duty "is set down with a view to perfecting us that we should not acquire moral habits of cruelty and should not inflict pain gratutiously, but that we should intend to be kind and merciful even with a chance animal individual except in case of need."16<i class="footnote">See also Ramban’s comments in his <i>Commentary on the Bible</i>, Deuteronomy 22:6.</i>
  The concern expressed in these sources is that cruelty to animals consequentially engenders an indiscriminately cruel disposition. Acts of cruelty mold character in a manner which leads to spontaneously cruel behavior. <i>Ẓa'ar ba'alei ḥayyim</i> is forbidden because cruelty is a character trait which is to be eschewed. Practicing kindness vis-à-vis animals has the opposite effect and serves to instill character traits of kindness and compassion. Development of such traits results in spontaneous acts of kindness, compassion and mercy. 
  II. Slaughter of Animals
  Since the concern is for the moral and spiritual health of the human agent rather than for the protection of brute creatures, it is not at all surprising that concern for <i>za'ar ba'alei ḥayyim</i> is less than absolute. 
  The most obvious exception is the slaughtering of animals for meat which is specifically permitted by Scripture to Noah and his progeny: "Every moving thing that liveth shall be food for you" (Genesis 9:3). Rambam, followed by <i>Sefer ha-Hinnukh</i>, regards this exception as circumscribed by the provisions surrounding the requirement for ritual slaughter in order to eliminate pain.17<i class="footnote">Indeed, <i>sheḥitah</i> is the most humane method of slaughter known to man. The procedure involves a transverse cut in the throat of the animal with an extremely sharp and smooth knife. Due to the sharpness of the knife and the paucity of sensory cutaneous nerve endings in the skin covering the throat, the incision itself causes no pain. The incision severs the carotid arteries as well as the jugular veins. The resultant massive loss of blood causes the animal to become unconscious in a matter of seconds. There is ample clinical evidence confirming the total absence of pain to the animal as a result of <i>sheḥitah</i>. This has long been recognized by scientists of international repute. In view of recurring misinformed attacks upon <i>sheḥitah</i> it is instructive to cite at length a portion of a detailed, clarificatory statement authored by Dr. Leonard Hill, Professor of Physiology, University of London, and Director of Applied Physiology, National Institute for Medical Research, which appeared in <i>Lancet</i>, CCV (1923), 1382 [reprinted in Solomon David Sassoon, <i>A Critical Study of Electrical Stunning and The Jewish Method of Slaughter</i> (<i>Shechita</i>) 3rd edition, (Letchworth, 1955), pp. 4-6]. Dr. Hill writes:See also Leonard Hill, “The Jewish Method of Slaughter: A Rejoinder to the Dutchess of Hamilton,” <i>The English Review</i>, June 1923, pp. 604-607, reprinted in Sassoon, pp. 36-38. Further statements confirming the painless nature of <i>sheḥitah</i> by Lord Horder, F.A.C.P., and Sir C. P. Lovatt Eveans, Emeritus Professor of Physiology, London University, are included in Sassoon, pp. 38-39. See also Solomon David Sassoon, <i>Supplement to the Booklet Entitled: A Critical Study of Electrical Stunning and The Jewish Method of Slaughter</i> (<i>Shechita</i>) (Letchworth, 1956).Both the absence of pain as a result of the incision and the almost instanteous loss of consciousness subsequent to <i>sheḥitah</i> are confirmed in a report prepared in 1963 by L. I. Nangeroni and P. D. Kennett of the Department of Physiology, New York State Veterinary College, Cornell University, Ithaca, New York, titled “An Electroencephalographic Study of the Effect of <i>Shechita</i> Slaughter on Cortical Function in Ruminants.” The primary significance of this study lies in the clinical investigation of changes in function which occur in the cerebral cortex following the act of <i>sheḥitah</i>. The investigators utilized an electroencephalograph in order to determine the precise moment at which the slaughtered animal ceases consciously to perceive pain and other environmental stimuli. Recordings were taken with sheep, calves and goats as subjects. It was determined that in the rams tested the time which elapsed subsequent to the making of the incision until the cerebral cortex lapsed into a state of complete unconsciousness ranged from 3.3 to 6.2 seconds. In calves it was found that consciousness appeared to be poor by the time that four seconds had elapsed after the cut and complete unconsciousness, in which condition the animal could not perceive stimuli of any kind, became manifest between 4.4 and 6.9 seconds after the cut. Of two goats tested, one became unconscious 5 seconds after slaughter; in the case of the second goat, the electroencephalogram was obscured and hence it was impossible to determine the exact time at which unconsciousness was reached.Electroencephalographic evidence serves to determine the precise moment at which the animal becomes unconscious and conclusively establishes the time beyond which it is manifestly impossible for the animal to experience pain. In the animals examined this ranged between 3.3 and 6.9 seconds subsequent to slaughter. However, this does not mean that the animals experienced pain during the few seconds prior to becoming unconscious. Indeed, there is no way of interpreting an electroencephalogram to determine whether or not pain is actually being experienced by a conscious animal. The electroencephalogram can only serve to establish that the animal is, in fact, unconscious and hence no longer capable of experiencing pain. With regard to the possibility of pain in conjunction with the actual incision before the animal loses consciousness, the report, p. 17, states:The absence of pain in association with a sharp incision is confirmed by a report of a bizarre incident recorded by H. Spörri, <i>Schächten und Tierschutz</i> (Report, University of Zurich, 1965), who describes the case of a man who cut his throat, including the trachea and esophagus but not the carotids. This person survived to report that the pain had not been severe.These findings were confirmed by W. Schulze <i>et al.</i>, Versuche zur Objektivierung von Schmerz und Bewusstsein bei der konventionellen (Bolzenschussbetäubung) sowie religionsgesetzlichen (Schächtschnitt) Schlachtung von Schaf und Kalb,” <i>Deutsche Tierärztliche Wochenschrift</i>, LXXXV, (February 5, 1978), 62-66. These researchers found it highly probable that in sheep a state of unconsciousness is reached within 4 to 6 seconds and in cattle within 10 seconds. A completely flat electroencephalogram was reached after no more than 13 seconds in sheep and after no more than 23 seconds in calves. During the few seconds in which consciousness might exist, a thermic pain stimulation caused no change in the EEG. The same authors conducted similar investigations upon animals subjected to electrical stunning and found that it took longer to reach a flat EEG and, moreover, that thermal pain stimulation as well as a subsequent incision produced a change in the EEG. Similar differences between <i>sheḥitah</i> and stunning were found by R. Gross, “Elektroencephalegraphische und elektrocardiographische Verlaufsuntersuchungen nach Bolzenschussbetäubung und nach Töten durch Entbluten in der Form des rituellen Schlachtens,” Thesis, University of Hannover, 1976.See also I. M. Levinger, “Jewish Method of Slaughtering Animals for Food and its Influence on the Blood Supply to the Brain and on the Normal Functioning of the Nervous System,” <i>Animal Regulation Studies</i>, II (1979), 111—26, and the studies concerning physiological aspects of <i>sheḥitah</i> cited in the extensive bibliography appended to that article.</i> According to Rambam, those provisions are designed to limit the pain insofar as possible. Thus in the <i>Guide</i>, Book III, chapter 26, Rambam states:
  As necessity occasions the eating of animals, the commandment was intended to bring about the easiest death in an easy manner. … In order that death should come about more easily, the condition was imposed that the knife should be sharp. 
  The same concept is reiterated by Rambam with even greater clarity in Book III, chapter 48, of the <i>Guide:</i>
  For the natural food of man consists only of the plants deriving from the seeds growing in the earth and of the flesh of animals…. Now since the necessity to have good food requires that animals be killed, the aim was to kill them in the easiest manner, and it was forbidden to torment them through killing them in a reprehensible manner by piercing the lower part of their throat or by cutting <i>off</i> one of their members, just as we have explained. 
  <i>Sefer ha-Hinnukh</i>, no. 451, similarly states:
  It has also been said with regard to the reason for slaughter at the throat with an examined knife that it is in order that we not cause pain to animals more than is necessary, for the Torah has permitted them to man by virtue of his stature to sustain himself and for all his needs, but not to inflict pain upon them purposelessly. 
  Rambam, <i>Guide</i>, Book III, chapter 26, makes it clear that the concern evidenced in the prescription of the mode of slaughter is identical with the consideration underlying the admonition concerning <i>za'ar ba'alei ḥayyim</i>. Both the prescriptions concerning ritual slaughter and the prohibition against <i>za'ar ba'alei ḥayyim</i> are regarded by Rambam as having been imposed "with a view to purifying the people," i.e., in order to prevent internalization of cruelty as a character trait and to promote the development of compassion.18<i class="footnote">See also Ramban, <i>Commentary on the Bible</i>, Deuteronomy 22:6, and R. Joseph Albo, <i>Book of Principles</i>, Book III, chapter 15 as well as Ramban, <i>Commentary on the Bible</i>, Genesis 1:29, and <i>Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim</i>, no. 54, <i>s.v. u-mah</i>. An identical view is expressed by Philo, <i>De Virtutibus</i>, 141.</i>
  Although Jewish law permits consumption of meat only if the animal has been slaughtered in the prescribed manner, there is not to be found an explicit statement in the various codes or in the writings of early authorities prohibiting other forms of slaughter in situations in which the animal is killed for other purposes. If, as Rambam explicitly states, ritual slaughter is ordained to obviate <i>za'ar ba'alei ḥayyim</i>, it might well be presumed that other forms of slaughter are entirely excluded. Yet, as is well known, the ramifications and applications of Jewish law in fulfilling any specific commandment frequently are not coextensive with the rationale underlying the precept.19<i class="footnote">This point is made by <i>Pri Megadim</i> with regard to ritual slaughter in particular. See the concluding section of <i>Pri Megadim’</i>s introduction to <i>Hilkhot Sheḥitah</i>.</i> Thus it cannot be assumed that other modes of killing animals are proscribed by Jewish law, particularly if the method utilized is painless.20<i class="footnote">See <i>Taz, Yoreh De‘ah</i> 116:6 and <i>Taz, Yoreh De‘ah</i> 117:4. See below, note 61.</i>
  In point of fact, there is some controversy among latter-day rabbinic decisors with regard to the permissibility of putting animals to death other than by means of ritual slaughter. Some authorities maintain that the very act of killing an animal constitutes <i>za'ar ba'alei ḥayyim</i>; others maintain that considerations of <i>za'ar ba'alei ḥayyim</i> pertain only to the treatment of animals while they are yet alive, but do not preclude the killing of animals by any available method. Stated somewhat differently, the latter authorities maintain that the act of putting an animal to death is excluded from the prohibition against <i>za'ar ba'alei ḥayyim</i>. The authorities who forbid putting an animal to death (other than for the satisfaction of a legitimate human need, as will be shown later) apparently forbid even "painless" methods since the act of killing the animal <i>ipso facto</i> constitutes <i>za'ar ba'alei ḥayyim</i>. Thus, according to those authorities, the destruction of an unwanted pet, for example, would be forbidden. 
  The most prominent latter-day authority to address this question directly is the preeminent eighteenth-century rabbinic decisor, R. Ezekiel Landau, <i>Teshuvot Noda bi-Yehudah, Mahadura Kamma, Yoreh De'ah</i>, no. 83. <i>Noda bi-Yehudah</i> declares emphatically that the mere killing of an animal does not involve transgression of the prohibition against <i>za'ar ba'alei ḥayyim</i>, a prohibition which he regards as applicable "only if he causes [the animal] pain while alive."21<i class="footnote">The identical position is reiterated by the same author in <i>Noda bi-Yehudah, Mahadura Tinyana, Yoreh De‘ah</i>, no. 10 and no. 13. In the latter responsum <i>Noda bi-Yehudah</i> rules that, although <i>ẓa‘ar ba‘alei ḥayyim</i> is permitted when necessary to serve a human need, nevertheless, when the option is available, it is preferable to sacrifice the animal rather than to perform a painful procedure upon a living animal. <i>Noda bi-Yehudah</i> presumably reasons that, since killing an animal involves no transgression of <i>ẓa‘ar ba‘alei ḥayyim</i>, there is no dispensation to cause pain when the same need can be met by killing the animal.</i> In support of this ruling <i>Noda bi-Yehudah</i> cites a narrative reported in the <i>Gemara, Hullin</i> 7b. The narrative, in part, illustrates the Gemara's assumption that a wound inflicted by a certain type of mule may be particularly dangerous in nature. It is reported that R. Judah the Prince invited R. Phinehas to dine with him. The Gemara relates:
  When R. Phinehas ben Yair arrived at the home of R. Judah he happened to enter by a gate near which were some mules. He [R. Phinehas] exclaimed, "The angel of death is in this house! Shall I dine with him?" Rabbi [Judah] heard and went out to meet him. He said to him [R. Phinehas], "I will sell them." He [R. Phinehas] said to him [R. Judah], "Thou shalt not put a stumbling block before the blind" (Leviticus 19:14). "I shall abandon them." "You would be spreading danger." "I shall hamstring them." "That would cause suffering to animals." "I shall kill them." "There is a prohibition against wanton destruction" (Deuteronomy 20:19). 
  Since R. Judah suggested killing the animals after already having been apprised that mutilating them is forbidden, argues <i>Noda bi-Yehudah</i>, it may be deduced that putting an animal to death does not constitute a proscribed form of <i>za'ar ba'alei ḥayyim</i>. Moreover, R. Phinehas objected to this proposal only because it would involve "wanton destruction," but not on the basis of considerations of <i>za'ar ba'alei ḥayyim</i>. An argument based upon the narrative recorded in <i>Hullin</i> 7b identical to that of <i>Noda bi-Yehudah</i> was earlier advanced by R. Gershon Ashkenazi, <i>Teshuvot Avodat ha-Gershuni</i>, no. 13.22<i class="footnote">A similar position is also espoused by <i>Sefer ha-Eshkol</i>, III, <i>Hilkhot Sheḥitah</i>, no. 10; <i>Teshuvot Bet Ya‘akov</i>, no. 42; R. Yonatan Eibeschutz, <i>Kereti u-feleti</i> 57:9; and <i>Gilyon Maharsha, Yoreh De‘ah</i> 117:4. Cf. R. Eliezer Waldenberg, <i>Ẓiẓ</i> <i>Eli‘ezer</i>, XIV, no. 68, sec. 4.</i>
  It is nevertheless clear from the discussion of <i>Noda bi-Yehudah</i> that it is forbidden to put an animal to death in a manner which involves pain prior to its demise. For that reason <i>Noda bi-Yehudah</i> declines to sanction withholding of food and water from an animal in order to cause its death. The method employed must be relatively swift in order to avoid pain to the animal while it is yet alive.
  The argument advanced by <i>Noda bi-Yehudah</i> in support of his contention that the killing of an animal is not a prohibited form of <i>za'ar ba'alei ḥayyim</i> is, however, rebutted by the nineteenth-century scholar, R. Joseph Saul Nathanson, <i>Teshuvot Sho'el u-Meshiv, Mahadura Tinyana</i>, III, no. 65. <i>Sho'el u-Meshiv</i> notes that the white mules in the home of R. Judah the Prince were regarded as posing a threat to human life. Ostensibly, all prohibitions, including both the prohibition against <i>za'ar ba'alei ḥayyim</i> as well as "thou shalt not wantonly destroy" may be ignored in order to eliminate danger to life. However, observes <i>Sho'el u-Meshiv</i>, the danger could not have been of a significant magnitude since Rabbi Judah had already kept the mules in his custody for a significant period of time without the animals having manifested any sign of aggressive behavior. Hence, since no actual danger threatened, "wanton destruction" could not be sanctioned. However, argues <i>Sho'el u-Meshiv</i>, pain may be inflicted upon animals in order to alleviate human suffering of a comparable magnitude. Therefore, the transitory pain attendant upon the swift death of an animal would have been justified in order to eliminate even an improbable threat to human life. Hamstringing the mules would, however, have resulted in ongoing suffering on the part of the animals and could not be sanctioned since the suffering caused to the animal would have been disproportionate to the human anguish alleviated thereby.23<i class="footnote">A similar analysis of the considerations underlying the exchange between R. Phinehas and R. Judah was earlier advanced by <i>Terumat ha-Deshen, Pesakim u-Ketavim</i>, no. 105. See also R. Yitzchak Blaser, <i>Teshuvot Pri Yiẓḥak</i>, I, no. 24, who offers an even more comprehensive analysis in a similar vein.</i> Accordingly, concludes <i>Sho'el u-Meshiv</i>, it may be inferred that causing the death of an animal is justifiable only if necessary to alleviate human pain, even if such pain is minor in nature, provided that no "wanton destruction" is involved. However, it cannot be inferred that causing the death of an animal is excluded from categorization as <i>za'ar ba'alei ḥayyim</i>. According to <i>Sho'el u-Meshiv</i>, the exchange between R. Phinehas and R. Judah serves only to support the conclusion that animals may be killed when necessary for human welfare but does not yield the conclusion that killing animals is excluded from the prohibition against <i>za'ar ba'alei ḥayyim</i>. 
  A twentieth-century scholar, R. Yechiel Ya'akov Weinberg, <i>Seridei Esh</i>, III, no. 7,24<i class="footnote">This responsum was addressed to R. Ya‘akov Breisch and was first published in the latter’s responsa collection, <i>Ḥelkat Ya‘akov</i>, 1, no. 31.</i> cites a statement of the Gemara, <i>Avodah Zarah</i> 13b, in support of the position that putting an animal to death does not constitute a forbidden form of <i>za'ar ba'alei ḥayyim</i>. The Gemara's discussion centers upon the problem presented by an animal that has been sanctified during the period following the destruction of the Temple. Since the animal cannot be used for its intended purpose and it is also forbidden to derive benefit from such an animal or to make use of it in any way, the animal can only serve as a vehicle for transgression. Its elimination, if halakhically permitted, would clearly be desirable. The Gemara queries, "Why can it not be made a <i>gistera</i>?" i.e., why can it not simply be killed by cutting it in half? It is evident from the question, argues <i>Seridei Esh</i>, that destroying an animal does not involve the prohibition of <i>za'ar ba'alei ḥayyim</i>. This argument, however, is not as compelling as it might appear. As will be shown, according to almost all authorities, <i>za'ar ba'alei ḥayyim</i> is permitted when designed to serve a human need. <i>Noda bi-Yehudah, Mahadura Kamma, Yoreh De'ah</i>, nos. 82 and 83, contends that elimination of a potential source of transgression constitutes such a need. Hence rendering the animal a <i>gistera</i> might be sanctioned, not because causing the death of an animal is uniformly permitted as not involving an infraction of strictures against <i>za'ar ba'alei ḥayyim</i>, but because even though it does involve a form of <i>za'ar ba'alei ḥayyim</i>, causing pain to an animal is permitted when designed to serve a human need. The query "Why can it not be made a <i>gistera</i>?" serves to establish that one of two principles is correct: Either the killing of an animal is excluded from the prohibition against <i>za'ar ba'alei ḥayyim</i> or <i>za'ar ba'alei ḥayyim</i> is permitted when designed to serve a human need. Accordingly, this source does serve to establish the principle that killing an animal for a purpose designed to serve a human need does not entail transgression of strictures against <i>za'ar ba'alei ḥayyim</i>.25<i class="footnote">Similarly, the Gemara, <i>Ḥullin</i> 27b and 85b, permits the putting of an animal to death by means other than ritual slaughter when the intent is not to use the animal’s meat for consumption but to conserve its blood when the blood is required for some other purpose. That source also serves to establish either that <i>ẓa‘ar ba‘alei ḥayyim</i> is permitted when designed for human welfare or that putting an animal to death is excluded from the prohibition against <i>ẓa‘ar ba‘alei ḥayyim</i>. See below, notes 28 and 61.R. Moses Sofer, <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 103, citing <i>Avodah Zarah</i> 13b, permits the killing of a sickly animal other than by means of ritual slaughter. It is, however, not possible to determine whether <i>Ḥatam Sofer</i> sanctions this practice because he espouses the position that putting an animal to death is excluded from strictures prohibiting <i>ẓa‘ar ba‘alei ḥayyim</i> or because the pain inflicted is designed to serve a human need, viz., to prevent the loss that would accrue to the animal’s owner were it to become carrion and its meat no longer be salable. This point seems to have been missed by R. Ze’ev Metzger, “Nisuyim Refu’iyim be-Ba‘alei Hayyim,” <i>Ha-Refu’ah le-Or ha-Halakhah</i>, vol. II, part 3, p. 31. See also below, notes 57 and 61.</i>
  Both <i>Seridei Esh</i> and R. Judah Leib Graubart, <i>Teshuvot Havalim ba-Ne'imim</i>, I, no. 43, sec. 4, demonstrate that <i>Tosafot</i> maintains that killing <i>per se</i> does not constitute an act of <i>za'ar ba'alei ḥayyim</i>. The Gemara, <i>Baba Batra</i> 20a, indicates that considerations of <i>za'ar ba'alei ḥayyim</i> prohibit the severing of a limb from a living animal in order that the limb may be used to feed dogs. Yet <i>Tosafot</i> states that the entire living animal may indeed be cast before dogs, which will then prey upon the animal. Thus, <i>Tosafot</i> apparently maintains that although a limb may not be torn from a living animal, nevertheless, causing the death of the animal in much the same manner does not involve transgression of the prohibition against <i>za'ar ba'alei ḥayyim</i>.26<i class="footnote">See also <i>Tosafot, Ḥullin</i> 2a, <i>s.v. shema. Tosafot</i> apparently permits the killing of an animal by means of ritual slaughter in order to feed its meat to dogs. Cf. above, note 25 and below, note 56 and accompanying text.</i> <i>Teshuvot Avodat ha-Gershuni</i>, R. Meir Fischels, quoted by <i>Teshuvot Noda bi-Yehuda, Mahadura Kamma, Yoreh De'ah</i>, no. 82, and <i>Havalim ba-Ne'imim</i> also cite the comment of <i>Tosafot, Sanhedrin</i> 80a, in which <i>Tosafot</i> remarks that withholding food and drink from an animal constitutes <i>za'ar ba'alei ḥayyim</i> but that causing its death by use of a hatchet does not.27<i class="footnote">Cf., however, <i>Sho‘el u-Meshiv, Mahadura Tinyana</i>, III, no. 65, who refutes this evidence claiming that <i>Tosafot</i> merely asserts that when <i>ẓa‘ar ba‘alei ḥayyim</i> is warranted it must be minimized insofar as possible.</i>
  However, the exclusion of killing animals from the prohibition of <i>za'ar ba'alei ḥayyim</i> is not recognized by all authorities. Although his comments are not cited in this context by latter-day authorities, Rambam apparently maintains that the killing of an animal, in and of itself, constitutes a form of <i>za'ar ba'alei ḥayyim</i>. Rambam, <i>Guide of the Perplexed</i>, Book III, chapter 17, states:
  … Divine Providence extends to every man individually. But the condition of the individual beings of other living creatures is undoubtedly the same as has been stated by Aristotle. On that account it is allowed, even commanded, to kill animals; we are permitted to use them according to our pleasure…. There is a rule laid down by our Sages that it is directly prohibited in the Torah to cause pain to an animal based on the words: "Wherefore hast thou smitten thine ass?" (Numbers 22:32). But the object of this rule is to make us perfect; that we should not assume cruel habits; and that we should not uselessly cause pain to others; that, on the contrary, we should be prepared to show pity and mercy to all living creatures, except when necessity demands the contrary: "When thy soul longeth to eat flesh" (Deuteronomy 12:20).28<i class="footnote">The immediately following verse. “… then thou shalt kill of thy herd and of thy flock … and thou shalt eat within thy gates” (Deuteronomy 12:21), serves to sanction ritual slaughter for purposes of food. Since, in context, the reference in Deuteronomy 12:20 is to ritual slaughter, it is clear that Rambam regards even the painless mode of ritual slaughter, when undertaken other than for purposes of food, as forbidden by reason of <i>ẓa‘ar ba‘alei ḥayyim</i>. However, Rambam would certainly regard ritual slaughter undertaken in order to satisfy other legitimate human needs as tantamount to slaughter for purposes of food. Ritual slaughter other than for purposes of food is clearly permitted as evidenced by the statement of the Gemara, <i>Ḥullin</i> 85b, to the effect that R. Ḥiyya slaughtered a bird in the prescribed manner because he sought to use its blood to destroy worms which had infested his flax. See <i>Sefer Ḥasidim</i> (ed. Reuben Margulies), no. 667. Moreover, when the blood of an animal is necessary for some beneficial purpose, the Gemara, <i>Ḥullin</i> 27b and 85b, permits putting an animal to death even by means other than ritual slaughter in order to conserve its blood. The comments of Rashi, <i>Shabbat</i> 75a, <i>s.v</i>. <i>shoḥet</i>, serve to indicate that, under any circumstances, when an animal is killed for human benefit other than for food, it is not necessary to put it to death by means of ritual slaughter. Cf. Rashi, <i>Ḥullin</i> 27b, <i>s.v</i>. <i>ḥayyav le-khasot</i>.</i> We should not kill animals for the purpose of practicing cruelty or for the purpose of sport.29<i class="footnote">See also <i>Sefer ha-Ḥinnukh</i>, no. 186, who explains that the slaughter of sanctified animals outside of the Temple precincts, even though the act is performed in the ritually prescribed manner, is forbidden because no purpose is served by such slaughter. <i>Sefer ha-Ḥinnukh</i> comments that wanton killing of animals is tantamount to “shedding blood.”</i>
  Rambam's comments regarding unnecessary killing of animals, especially as they single out for censure the killing of animals for sport, stand in sharp contrast to the position of <i>Noda bi-Yehudah</i> particularly as formulated in <i>Mahadura Tinyana, Yoreh De'ah</i>, no. 10, in which <i>Noda bi-Yehudah</i> addresses the question of the permissibility of engaging in hunting as a pastime.30<i class="footnote">For other sources prohibiting hunting see <i>Va-Yikra Rabbah</i> 13:3; Rashi, <i>Avodah Zarah</i> 18b, <i>s.v. kenigyon</i>; <i>Teshuvot Mahari Brona</i>, no. 71, <i>Teshuvot Maharam Rothenberg</i>, no. 27; Rema, <i>Shulḥan Arukh, Oraḥ Ḥayyim</i> 316:2; <i>Teshuvot Shemesh Ẓedakah, Yoreh De‘ah</i>, nos. 18 and 57; <i>Giv‘at Sha’ul, Parshat Va-Yeshev</i>, pp. 87-88; <i>Paḥad Yiẓḥak, s.v. Zeidah</i>; <i>Teshuvot Toldot Ya‘akov, Yoreh De‘ah</i>, no. 33; and <i>Darkei Teshuvah, Yoreh De‘ah</i> 117:44.</i> Although <i>Noda bi-Yehudah</i> is severely critical of those who engage in this activity on the grounds that hunting is both frivolous and dangerous, he explicitly states that it cannot be proscribed as a form of <i>za'ar ba'alei ḥayyim</i> since, in his opinion, putting animals to death is not encompassed within the ambit of that prohibition. A similar statement attributed to R. Joseph ibn Migas (known as Ri Migash) is quoted in <i>Shitah Mekubezet, Baba Batra</i> 20a. In contrast to the earlier cited comments of <i>Tosafot</i>, Ri Migash states that the slaughter of a domestic animal in order to feed its flesh to dogs constitutes no less a form of <i>za'ar ba'alei ḥayyim</i> than does the tearing of a limb from an animal while it is yet alive. Ri Migash apparently maintains that, although animals may be utilized in a usual and customary manner in order to satisfy human needs, they may not be subjected to pain and discomfort in conjunction with a use which is not usual. Ri Migash contends that, since it is not customary to slaughter animals for dog food, such slaughter even if performed in the ritual manner "is also <i>za'ar ba'alei ḥayyim</i> for it is killing and not ritual slaughter."31<i class="footnote">See also <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 1; R. Yechiel Ya‘akov Weinberg, <i>Seridei Esh</i>, III, no. 7, and <i>Teshuvot Ḥelkat Ya‘akov</i>, I, no. 31, sec. 4; and R. Moshe Yonah Zweig, <i>Ohel Mosheh</i>, I, no. 32. See also R. Jacob Reisher, <i>Teshuvot Shevut Ya‘akov</i>, II, no. 110, who declares that an “unusual” practice involving pain is prohibited, particularly when designed for only “a minor benefit.” Cf. <i>Teshuvot Rav Pe’alim</i>, I, <i>Yoreh De‘ah</i>, no. 1.</i>
  In a similar vein, <i>Sefer ha-Hinnukh</i>, no 451, explains that the rationale underlying the commandment concerning ritual slaughter is the consideration of <i>za'ar ba'alei ḥayyim</i> and, for that reason, it is forbidden to slaugher an animal "even with a knife which is notched." Thus, <i>Sefer ha-Hinnukh</i> clearly maintains that killing animals other than in the ritually prescribed manner is a form of <i>za'ar ba'alei ḥayyim</i>. Similarly, Rabbenu Nissim, <i>Hullin</i> 18b, states that killing an animal by crushing its vertebrae rather than by severing the trachea and esophagus constitutes <i>za'ar ba'alei ḥayyim</i>.32<i class="footnote">See <i>Ḥavalim ba-Ne‘imim</i>, I, no. 43, sec. 4. This also appears to the position of <i>Teshuvot ha-Ge’onim</i> (ed. Abraham E. Harkavi), no. 375.</i>
  Latter-day authorities who maintain that putting an animal to death constitutes a form of <i>za'ar ba'alei ḥayyim</i> include R. Joel Sirkes, <i>Bayit Hadash, Yoreh De'ah</i> 116, <i>s.v. mashkin</i>; R. Jacob Emden, <i>She'elat Ya'ave&amp;x1E93;</i>, I, no. 110; R. Jacob Reischer, <i>Teshuvot Shevut Ya'akov</i>, III, no. 71; R. Eliyahu Klatzkin, <i>Teshuvot Imrei Shefer</i>, no. 34; and R. Moshe Yonah Zweig, <i>Ohel Mosheh</i>, I, no. 32. 
  <i>She'elat Ya'ave&amp;x1E93;</i> questions whether <i>za'ar ba'alei ḥayyim</i> applies to all living creatures, including insects and the like, or is limited to beasts of burden and domestic animals.33<i class="footnote"><i>Ḥavalim ba-Ne‘imim</i>, I, no. 43, sec. 6, quotes <i>She’elat Ya‘ave&amp;x1E93;’s</i> comments as cited by a secondary source, <i>Bet Ephrayim, Yoreh De‘ah</i> 117. That source quotes <i>She’elat Ya‘ave&amp;x1E93;</i> as stating that <i>ẓa‘ar ba‘alei ḥayyim</i> applies only to “work animals.” <i>Ḥavalim ba-Ne‘imim</i> cites a ruling of <i>Sefer Ḥasidim</i> (ed. Reuben Margulies), no. 44, forbidding pulling the ears of a cat and states that this position contradicts the view of <i>She’elat Ya‘ave&amp;x1E93;</i>. In point of fact, <i>She’elat Ya‘ave&amp;x1E93;</i> explicitly states “and perhaps even dog[s] and cat[s] are included [in the prohibition] since they also are domesticated and perform work.” A more significant contradiction to the position of <i>She’elat Ya‘ave&amp;x1E93;</i> is found by <i>Ḥavalim ba-Ne‘imim</i> in the comments of <i>Shevut Ya‘akov</i>, III, no. 71. <i>Shevut Ya‘akov</i> demonstrates that <i>ẓa‘ar ba‘alei ḥayyim</i> is permitted for the benefit of human beings on the basis of the Gemara, <i>Shabbat</i> 77b. The Gemara observes that God did not create a single thing without purpose. The Gemara gives specific examples of the utility of seemingly useless creatures. The fly is crushed and applied to the site of a hornet’s sting; the mosquito is crushed and used as a remedy for a serpent’s bite; a crushed spider is used as a remedy for a scorpion’s bite; and various serpents are boiled to a pulp and rubbed in at the site of an eruption. <i>Shevut Ya‘akov</i> adduces that dictum as proof that <i>ẓa‘ar ba‘alei ḥayyim</i> is permissible for human welfare. <i>Ḥavalim ba-Ne‘imim</i> points out that <i>Shevut Ya‘akov’</i>s argument is cogent only if, in contradiction to <i>She‘ilat Ya‘ave&amp;x1E93;’</i>s position, he assumes that consideration of <i>ẓa‘ar ba‘alei ḥayyim</i> apply to all creatures, including serpents and insects. See also, below, note 46.</i> Presumably, if lower animals are excluded, it is on the basis of the rationale that they lack highly developed nervous systems and hence do not experience pain in a manner comparable to mammals and vertebrates. <i>She'elat Ya'ave&amp;x1E93;</i> concludes that it is permissible to kill harmless insects because insects are excluded from the prohibition concerning <i>za'ar ba'alei ḥayyim</i>. The clear inference to be drawn from these comments is that, with regard to vertebrates, <i>She'elat Ya'ave&amp;x1E93;</i> maintains that killing <i>per se</i> constitutes a prohibited form of <i>za'ar ba'alei ḥayyim</i>. 
  Echoing the earlier cited statements of Ri Migash, <i>Imrei Shefer</i> forbids the slaughter of animals for purposes of feeding their meat to dogs and adds the explanatory comment that it is forbidden to cause pain to an animal for the benefit of another animal. In this regard the constraint vis-à-vis imposition of pain upon animals is identical with that concerning causing human suffering. No pain may be imposed upon a human, even for the benefit of a fellow man, other than upon the consent of the person who suffers the pain. Since animals lack capacity to grant consent, pain may not be imposed upon an animal for the benefit of another member of the animal kingdom. 
  III. Ẓa 'ar Ba 'alei Hayyim for Human Benefit
  Jewish law, at least in its normative formulation, sanctions the infliction of pain upon animals when the act which causes pain is designed to further a legitimate human purpose. This is evident from two rulings recorded in <i>Shulḥan Arukh</i>. Rema, <i>Shulḥan Arukh, Yoreh De'ah</i> 24:8, rules that, prior to slaughtering sheep, the wool covering the area where the neck is to be slit should be removed in order to enable the act of slaughter to be performed in the prescribed manner. <i>Shakh, Yoreh De'ah</i> 24:8, extends the same requirement to the slaughter of fowl and requires that feathers be plucked from the throat of fowl prior to slaughter. Rema, <i>Shulḥan Arukh, Even ha-Ezer</i> 5:14, states even more explicitly:
  Anything which is necessary in order to effect a cure or for other matters does not entail [a violation] of the prohibition against <i>za'ar ba'alei ḥayyim</i>. Therefore, it is permitted to pluck feathers from geese and there is no concern on account of <i>za'ar ba'alei ḥayyim</i>. But nevertheless people refrain [from doing so] because it constitutes cruelty. 
  This ruling, cited in the name of <i>Issur ve-Heter</i> 59:36, is supported by the comments of <i>Tosafot, Baba Mezi'a</i> 32b.34<i class="footnote">Cf., however, R. Elijah of Vilna, <i>Bi‘ur ha-Gra, Even ha-Ezer</i> 5:40, and the comments of R. Jacob Breisch, <i>Teshuvot Ḥelkat Ya‘akov</i>, I, no. 30, secs. 2-3, as well as Shmuel, Moshe Mordecai and Eleazar Shulsinger, <i>Mishmar ha-Leviyim</i> (Zikhron Me’ir, 5740), no. 20. See also R. Yechiel Ya‘akov Weinberg, <i>Seridei Esh</i>, III, no. 7, and <i>Ḥelkat Ya‘akov</i>, I, no. 31, secs. 1-3.R. Judah Leib Zirelson, <i>Ma‘arkhei Lev</i>, no. 110, finds a biblical source for this ruling: “And Samson went and caught three hundred foxes and took torches and turned tail to tail and put a torch in the midst between every two tails. And when he had set the torches on fire, he let them go into the standing corn of the Philistines and burn up both the shucks and the standing corn and also the olive-yards” (Judges 15:4-5). <i>Ma‘arkhei Lev</i> argues that inflicting severe pain on the foxes was sanctionable only because it served a human need and hence the general principle can be traced to these verses. R. Jacob Breisch, <i>Teshuvot Ḥelkat Ya‘akov</i>, I, no. 30, sec. 5, cogently rebuts this argument on the grounds that Samson was involved in a defensive war against the Philistines and, in fact, his own life was endangered. Hence Judges 15:4-5 serves only to establish that <i>ẓa‘ar ba‘alei ḥayyim</i> is permitted when human life is endangered but not necessarily for the sake of a lesser purpose.</i> <i>Tosafot</i> poses the following question: The Gemara, <i>Avodah Zarah</i> 11a, declares that, in conjunction with the funeral rites of a monarch, it is permitted to sever the tendons of the horse upon which the king rode. This practice is permitted despite its source in pagan rituals because it is intended as an act of homage to the deceased king. If <i>za'ar ba'alei ḥayyim</i> involves a biblical infraction, queries <i>Tosafot</i>, why may the animal be mutilated in this manner? <i>Tosafot</i> answers that such a practice is permitted "in honor of king[s] and prince[s] just as 'thou shalt not wantonly destroy' (Deuteronomy 20:19) is abrogated for the sake of their honor." Insofar as the prohibition concerning "wanton destruction" is concerned, <i>Tosafot</i>'s comment is clear. The prohibition against "wanton destruction" is not suspended or abrogated for the sake of royal honor; rather, Scripture forbids only wanton destruction of fruit trees and, by extension, of other objects of value as well. Scripture does not forbid enjoyment of consumables since such use does not constitute "destruction." Similarly, "destruction" which serves a legitimate purpose is not proscribed since it is not wanton or "destructive" in nature. "Destruction" for purposes of rendering homage to a deceased monarch is a legitimate use of property and hence is not forbidden. <i>Tosafot</i> apparently regards <i>za'ar ba'alei ḥayyim</i> in a similar light, i.e., as forbidden only when wanton in nature,35<i class="footnote">Cf. <i>Teshuvot Mareh Yeḥezkel</i>, no. 59, who expresses amazement at Rema’s ruling querying, “Whence is it derived that violation of the biblical prohibition of <i>ẓa‘ar ba‘alei ḥayyim</i> may be sanctioned to effect a cure or for human benefit?” In light of <i>Tosafot’</i>s comments to the effect that the prohibition does not encompass such contingencies, <i>Mareh Yeḥezkel’</i>s incredulity is misplaced.</i> but permissible when designed to achieve a legitimate goal.36<i class="footnote">See below, note 50.</i> Hence, declares <i>Tosafot</i>, mutilation of the royal steed in conjunction with the funeral of a monarch is permitted even though the animal experiences pain because mutilation of the animal serves to fulfill a legitimate purpose. In accordance with this position, Rema rules that <i>za'ar ba'alei ḥayyim</i> is permissible for purposes of healing or for any other legitimate purpose.37<i class="footnote">See R. Abraham Hafuta, <i>No‘am</i>, IV (5721), 223f. <i>Piskei Tosafot, Avodah Zarah</i> 1:11, in what is apparently a precis of <i>Tosafot, Baba Meẓi‘a</i> 32b, (or the precis of a different manuscript of <i>Tosafot</i> on <i>Avodah Zarah</i>) states that <i>ẓa‘ar ba‘alei ḥayyim</i> is forbidden only when the pain caused to the animal yields “no profit” (<i>beli revaḥ</i>).</i>
  Among early authorities, the permissibility of <i>za'ar ba'alei ḥayyim</i> for human benefit is explicitly accepted by Ramban, <i>Avodah Zarah</i> 13b, who states that the "slaughter and causing of pain to animals is permissible for the need of man." A similar view can be inferred from the comments of Rabbenu Nissim of Gerondi, cited by <i>Nimukei Yosef, Baba Mezi'a</i> 32b, the Gemara explicitly exempts scholars and others for whom such activity would be unseemly and undignified from the obligation of assisting in the unloading of a burden from an overladen animal. <i>Nimukei Yosef</i> questions why it is that considerations of human dignity are permitted to supercede biblical obligations regarding the welfare of animals. In resolving this difficulty, <i>Nimukei Yosef</i> quotes the comments of Rabbenu Nissim who states that "since <i>za'ar ba'alei ḥayyim</i> is permitted for the use of humans,38<i class="footnote">Cf., however, <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 11, who endeavors to ascribe a different import to the words of Rabbenu Nissim.</i> <i>a fortiori</i> [it is permitted] for their honor."39<i class="footnote"><i>Nimukei Yosef</i> cites Ramban as resolving this difficulty in an entirely different manner. Ramban asserts that the “commandment concerning honor of the Torah takes precedence over considerations of <i>ẓa‘ar ba‘alei ḥayyim</i>.” The readily apparent explanation of Ramban’s failure to advance an explanation similar to that offered by Rabbenu Nissim is that Ramban does not sanction <i>ẓa‘ar ba‘alei ḥayyim</i> for the purpose of satisfying a human need. That position is however rejected by Ramban’s own remarks in his commentary on <i>Avodah Zarah</i> 13b.</i> Yet another early authority, Ritva, <i>Shabbat</i> 154b, maintains that <i>za'ar ba'alei ḥayyim</i> is permitted even for financial reasons as is evident from his statement that "for the purpose of [man's] service and preservation of his money <i>[za'ar ba'alei ḥayyim</i>] is certainly permitted."
  <i>Terumat ha-Deshen, Pesakim u-Ketavim</i>, no. 105, regards the permissibility of causing suffering to animals for the benefit of mankind to be inherent in the biblical dispensation granting man the right to use animals for his needs.40<i class="footnote">This concept is echoed in Psalms 8:7-9 which says of man: “Thou hast made him to have dominion over the works of Thy hands; Thou hast put all things under his feet. Sheep and oxen, all of them, yea, and the beasts of the field. The fowl of the air, and the fish of the sea; whatsoever passeth through the paths of the seas.”As evidenced by numerous biblical verses, it is clear that man is granted license to utilize animals as beasts of burden, for agricultural purposes, as a means of transportation and the like. Judaism also accepts the view that animals were created for the benefit of mankind. Thus, the Gemara, <i>Berakhot</i> 6b, reports: R. Eleazar said, “The Holy One, blessed be He, declared, ‘The whole world in its entirety was not created other than on behalf of this [human species].’ ” Even more explicit is the statement of R. Simeon ben Eleazar, <i>Kiddushin</i> 82b, declaring, “… they [animals] were not created other than to serve me.” This view is not contradicted by the position espoused by Rambam in a celebrated dispute with Sa‘adia Ga’on in which Rambam denies the homocentric nature of the universe. The <i>Book of Beliefs and Opinions</i>, Treatise IV, introduction, asserts that man is the intended and ultimate purpose of creation; Rambam, <i>Guide</i>, Book III, chapter 13, challenges this view, pointing out that the human species has no need for a great part of the cosmos. Rambam maintains that all parts of the world are equally intended by the divine will but acknowledges that certain beings were created for the service of others. Thus, in Rambam’s view, there is no contradiction in acknowledging that service to other species is the instrumental purpose of some creatures while yet affirming their own existence as the final cause of those creatures.</i> R. Moses Sofer, <i>Hagahot Hatam Sofer, Baba Mezi'a</i> 32b,41<i class="footnote">See also <i>Teshuvot Ḥatam Sofer, Ḥoshen Mishpat</i>, no. 185, <i>s.v. ma she-katavata me-Rabad</i>; cf., however, <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 314 <i>s.v. omnam</i>; and <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 2.</i> cites the divine declaration to Adam and Eve, "… and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that creepeth upon the earth" (Genesis 1:28),42<i class="footnote"><i>Terumat ha-Deshen</i> rules that, as a matter of law, it is permissible to cause pain to animals even for the esthetic pleasure of man, and, accordingly, permits clipping the ears and tail of a dog “in order to beautify it.” Cf., however, <i>Sefer Ḥasidim</i> (ed. <i>Mekiẓei Nirdamim</i>), no. 589, who forbids any attempt to effect a “change” in correcting a congenital anomaly in a limb or organ of an animal on grounds that such a procedure constitutes a violation of the prohibition against <i>ẓa‘ar ba‘alei ḥayyim</i>. In an even more general statement, <i>Da‘at Kedoshim, Yoreh De‘ah</i> 24:12, declares that acts which cause discomfort to animals are permissible in order to satisfy “any desire of man even if his desire in this regard is not in accordance with the weighing of need or benefit but only a desire without a proper reason.” The same authority permits such procedures even if there is only the mere possibility that the need or desire may be satisfied thereby. See also <i>Da‘at Kedoshim, Yoreh De‘ah</i> 23:28. A similar view is expressed by <i>Ezer mi-Kodesh, Even ha-Ezer</i> 5:14. Cf., however, below, note 67.</i> as establishing man's absolute and unlimited mastery over the animal kingdom.43<i class="footnote">Cf., however, <i>Sefer Ḥasidim</i> (ed. Reuben Margulies), no. 666, who applies Genesis 1:28 in a radically different manner. <i>Sefer Ḥasidim</i> remarks that Adam was forbidden to eat the flesh of animals but was granted dominion over them, whereas the sons of Noah were permitted to eat the flesh of animals but were not granted dominion over them. According to <i>Sefer Ḥasidim</i>, it is because the sons of Noah were not granted dominion over animals that the angel chastised Balaam in demanding, “Wherefore has thou smitten thine ass these three times?” (Numbers 22:32). As pointed out by R. Reuben Margulies in his commentary on <i>Sefer Ḥasidim, Mekor Ḥesed</i> 666:7, <i>Sefer Ḥasidim</i> obviously maintains that Noachides are forbidden to engage in acts involving <i>ẓa‘ar ba‘alei ḥayyim</i>. As indicated earlier, Rambam also cites Numbers 22:32 as the source of the prohibition against <i>ẓa‘ar ba‘alei ḥayyim</i>. Hence there is some reason to assume that Rambam also maintains that <i>ẓa‘ar ba‘alei ḥayyim</i> is prohibited to Noachides. <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 2 and sec. 8, also suggests that Noachides may be bound by strictures concerning <i>ẓa‘ar ba‘alei ḥayyim</i> which, in his opinion, may be encompassed in the prohibition contained in the Noachide Code concerning the eating of a limb torn from a living animal. See, however, <i>Pri Megadim, Oraḥ Ḥayyim, Mishbeẓot Zahav</i> 467:2 and R. Shalom Mordecai Schwadron, <i>Teshuvot Maharsham</i>, II, no. 364, who apparently maintain that non-Jews are not bound by strictures concerning <i>ẓa‘ar ba‘alei ḥayyim</i>. See also <i>Toldot Ya‘akov, Yoreh De‘ah</i>, no. 33.</i> R. Judah Leib Graubart, <i>Havalim ba-Ne'imim</i>, I, no. 43, sec. 3, advances an identical argument on the basis of Genesis 9:1-2: "And God blessed Noah and his sons…. And the fear of you and the dread of you shall be upon every beast of the earth, and upon every fowl of the air, and upon all wherewith the ground teemeth, and upon all the fishes of the sea: into your hand are they delivered."
  <i>Terumat ha-Deshen, Pesakim u-Ketavim</i>, no. 105, and R. Elijah of Vilna, <i>Bi'ur ha-Gra, Even ha-Ezer</i> 5:40, cite a number of talmudic sources as the basis of Rema's ruling. Leviticus 22:24 serves to establish a prohibition against the emasculation of animals. Although the phenomenon is unknown to modern science, the Gemara, <i>Shabbat</i> 110b, regards removal of a rooster's comb as causing the rooster to become sterile but nevertheless permits the practice because it does not involve excision of a sexual organ.44<i class="footnote">See Rema, <i>Even ha-Ezer</i> 5:13. Cf., <i>Bi‘ur ha-Gra, Even ha-Ezer</i> 5:31; and R. Jacob Emden, <i>She’elat Ya‘avẓ</i>, I, no. 111.</i> This procedure is permissible despite the fact that it is obviously accompanied by pain. The attendant pain, argues <i>Bi'ur ha-Gra</i>, does not render the procedure impermissible because it is designed to promote a human benefit. Moreover, the Gemara, <i>Hagigah</i> 14b, tentatively considers the possibility that Scripture forbids only the emasculation of members of those species of animals which may be offered as sacrifices, an inference that might be drawn from the context of Leviticus 22:24. Since castration is necessarily accompanied by pain, this possibility could be entertained only if it is accepted as an antecedent premise that <i>za'ar ba'alei ḥayyim</i> is not forbidden when necessary to achieve a beneficial result. Furthermore, these scholars indicate that placing a heavy load upon a beast of burden, an act that is clearly sanctioned by the Gemara, <i>Baba Mezi'a</i> 32b, is in itself a form of <i>za'ar ba'alei ḥayyim</i> and is permitted only because the prohibition does not apply in situations in which the act is undertaken for human benefit.45<i class="footnote">For a rebuttal of the evidence yielded by these sources see R. Yitzchak Dov Bamberger, <i>Teshuvot Yad ha-Levi</i>, I, <i>Yoreh De‘ah</i>, no. 196, and <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 10.</i>
  A twentieth-century halakhist, R. Ya'akov Breisch, <i>Helkat Ya'akov</i>, I, no. 30, sec. 6, seeks to find further support for this position in <i>Taz</i>' understanding of a discussion recorded in the Gemara, <i>Hullin</i> 28a. In the household of Rava, the skin on the throat of a dove was found to have been pierced and bleeding. The question confronting Rava was whether or not the dove might yet be slaughtered and eaten. A perforation or anomaly of either the trachea or the esophagus would have rendered the bird unfit. Since the outer skin had been pierced, there was reason to suspect that the trachea and or the esophagus might have been damaged as well. Those organs could not be examined satisfactorily subsequent to slaughter since a perforation or anomaly might well have been present at the site of the incision made by the slaughterer's knife and would not be discernible subsequent to slaughter. Moreover, since the esophagus is pink in color it is not possible to examine any part of the esophagus prior to slaughter because a drop of blood might possibly be lodged at the site of the perforation and cover a miniscule hole or (according to <i>Tosafot</i>) the reddish color of the esophagus itself might render a perforation or an anomaly indiscernible. Rava's son Rav Yosef counseled that the trachea, which is white, be examined prior to slaughter and, since fowl (as distinct from four-legged animals) require the severance of either the trachea or the esophagus but not necessarily of both, care be taken not to pierce the esophogus. Rav Yosef further directed that, subsequent to slaughtering the bird, the esophagus be removed and examined along its inner surface which is white. 
  This narrative serves as the basis of the normative rule to be applied in similar situations in which an animal has experienced a trauma in the area to be incised in the act of slaughter. The problem which arises in such instances is that the site at which the trachea is to be severed must be examined prior to slaughter. If, as must be presumed to be the case, the tear in the skin covering the trachea is small, such an examination is impossible. <i>Taz, Yoreh De'ah</i> 33:11, indicates that the tear in the skin of the throat must be enlarged in order to examine the trachea. Clearly, enlarging the hole in the skin covering the trachea causes pain to the animal. It must be presumed that this procedure is sanctioned despite the accompanying pain only because the procedure is necessary in order to render the bird permissible for consumption. Accordingly, this ruling would support the thesis that <i>za'ar ba'alei ḥayyim</i> is permissible when necessary for human welfare. <i>Helkat Ya'akov</i> agrees that subsequent to Rema's ruling there is no question that the procedure described by <i>Taz</i> is permissible. However, he points out that the talmudic discussion cited by <i>Taz</i> cannot be adduced as the basis of this ruling concerning <i>za'ar ba'alei ḥayyim</i>. That discussion could well be understood as permitting a procedure of this nature in the rare circumstances in which the requisite visual examination of the trachea can be undertaken without further elongation of the already existing cut. 
  <i>Teshuvot Shevut Ya'akov, III, no. 71,46<i class="footnote"><i>Shevut Ya‘akov</i> also adduces proof that <i>ẓa‘ar ba‘alei ḥayyim</i> is permitted, at least for medical purposes, on the basis of the statement of the Gemara, <i>Shabbat</i> 77b, to the effect that various insects were created so that, when crushed, they might be used as remedies for various bites and that serpents were created so that they might be boiled and used as a cure for eruptions; see above, note 33. As additional evidence, he cites the statement of the Gemara, <i>Shabbat</i> 109b, advising that if one is bitten by a snake “he should procure an embryo of a white ass, tear it open, and be made to sit upon it.” A further source which may be cited is the statement of the Gemara, <i>Shabbat</i> 110b, dealing with the treatment of jaundice, which advises, <i>inter alia</i>, “let him take a speckled swine, tear it open and apply it to his heart.” However, these sources fail to demonstrate that <i>ẓa‘ar ba’alei ḥayyim</i> is permitted for medical purposes if the killing of animals is excluded from the prohibition; see above, notes 21-25 and accompanying text.</i> and Teshuvot Rav Pe'alim</i>, I, <i>Yoreh De'ah</i>, no. 1, find support for Rema's ruling in the Mishnah, <i>Avodah Zarah</i> 13b. It is forbidden to sell a solitary white chicken to an idolator for fear that he may intend to offer the bird as a pagan sacrifice. However, since a mutilated bird would not be used for idolatrous purposes, the Mishnah permits the seller to render the chicken unfit for sacrificial use by removing a digit from the chicken's foot prior to sale. Here, too, such a procedure necessarily entails pain to the chicken. Accordingly, argue <i>Shevut Ya'akov</i> and <i>Rav Pe'alim</i>, such a practice could be permitted only because it is prompted by legitimate commercial need. The procedure sanctioned by the Mishnah serves as a paradigm establishing the general principle that <i>za'ar ba'alei ḥayyim</i> is permissible when necessary to satisfy a human need.47<i class="footnote">See, however, R. Yechiel Ya‘akov Weinberg, <i>Seridei Esh</i>, III, no. 7, and <i>Ḥelkat Ya‘akov</i>, III, no. 31, sec. 4. Rabbi Weinberg argues that this source cannot serve as a basis for Rema’s ruling since “perhaps” such practices are condoned only for the purpose of preventing idolatrous activities. Cf. Ramban, <i>Avodah Zarah</i> 13b. In his analysis of the Gemara’s citation of the verse “and their horses shall you hough (<i>et suseihem te‘aker</i>)” (Judges 1:6), Ramban equates abrogation of idolatrous practices with other human needs. See also <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 9, who endeavors to show that <i>ẓa‘ar ba‘alei ḥayyim</i> was permitted in the case of the white chicken sold to an idolator only to spare the animal from even greater pain. The same authority, <i>loc. cit.</i>, no. 34, sec. 14, also suggests that this procedure was permitted only when performed in a manner which does not entail pain; see below, note 52. A similar explanation is advanced by <i>Ḥavalim ba-Ne‘imim</i>, I, no. 43, sec. 3.</i>
  Although Rema's ruling is accepted by virtually all latter-day authorities, it appears that his position is rejected by at least one early authority. The authors of the commentary of <i>Tosafot</i> on <i>Avodah Zarah</i> 11a pose the selfsame question with regard to the mutilation of the royal steed as raised in the commentary of <i>Tosafot</i> on <i>Baba Mezi'a</i> 32b. However, in their commentary on <i>Avodah Zarah</i>, the authors of <i>Tosafot</i> resolve the problem in an entirely different manner.48<i class="footnote"><i>Tosafot, Avodah Zarah</i> 11a, states that <i>ẓa‘ar ba‘alei ḥayyim</i> is permitted “in honor of the king which is the honor of all of Israel, and the honor of the multitude takes precedence over <i>ẓa‘ar ba‘alei ḥayyim.”</i> See also <i>Teshuvot Noda bi-Yehuda, Mahadura Tinyana, Yoreh De‘ah</i>, no. 10.</i> But, since the problem is completely dispelled on the premise that <i>za'ar ba'alei ḥayyim</i> is permissible for human benefit, <i>Tosafot'</i>s failure to resolve the problem in that manner in the commentary on <i>Avodah Zarah</i> presumably reflects the fact that the authors of the <i>Tosafot</i> on that tractate (in disagreement with the view of the authors of <i>Tosafot</i> on <i>Baba Mezi'a)</i> regard <i>za'ar ba'alei ḥayyim</i> as not permissible even when designed to promote human benefit.49<i class="footnote">See also the comments of Ramban, cited above, note 39. <i>Teshuvot Rema Panu</i>, no. 102, forbids placing a bird upon eggs of another species in order to hatch them because of concern for <i>ẓa‘ar ba‘alei ḥayyim</i>. This ruling is also recorded in <i>Kiẓur Shulḥan Arukh</i> 191:4. Ostensibly, this authority maintains that <i>ẓa‘ar ba‘alei ḥayyim</i> is prohibited even when designed for general human benefit or, minimally, when undertaken for financial profit; however, see below, note 59. Cf. R. Shimon ben Ẓemah Duran, <i>Tashbaẓ</i>, II, no. 59, cited by <i>Pitḥei Teshuvah, Yoreh De‘ah</i> 297:1, who maintains that this procedure causes no discomfort to the bird.</i>
  A somewhat modified position is espoused by R. Joseph Teumim, <i>Pri Megadim, Oraḥ Hayyim, Mishbezot Zahav</i> 468:2. <i>Pri Megadim</i> reports that his advice was sought by an individual who maintained exotic birds in his garden and was fearful that they might take flight. The interlocutor sought a ruling with regard to the propriety of breaking "a small bone in their wings" in order to render them incapable of flight and prevent financial loss to their keeper. <i>Pri Megadim's</i> response was negative for, in his opinion, "<i>za'ar ba'alei ḥayyim</i>, other than in case of great need, is forbidden." Apparently, <i>Pri Megadim</i> distinguishes between ordinary "need" or "benefit" and "great need" and sanctions <i>za'ar ba'alei ḥayyim</i> only in the latter situation. In a similar vein, <i>Teshuvot Avodat ha-Gershuni</i>, no. 13, quotes a certain R. Tevel the Physician as declaring that <i>za'ar ba'alei ḥayyim</i> cannot be sanctioned for purposes of realizing "a small profit."
  There is also some controversy with regard to the nature of the need or benefit which is deemed to warrant causing pain to animals. <i>Issur ve-Heter he-Arukh</i> 59:36, cites a version of <i>Tosafot</i> which differs from the published texts. <i>Issur ve-Heter he-Arukh</i> states that, in declaring that <i>za'ar ba'alei ḥayyim</i>, "if it is efficacious for some matter," is permissible. <i>Tosafot</i> intends to permit <i>za'ar ba'alei ḥayyim</i> only for therapeutic purposes, including procedures necessary for the treatment of even non-life-threatening maladies.50<i class="footnote">See commentary of <i>Zev Zakhar</i>, sec. 17, on <i>Issur ve-Heter, ad loc. Zev Zakhar</i> points out that an entirely different inference should be drawn from the published text of <i>Tosafot, Avodah Zarah</i> 11a; viz., that <i>ẓa‘ar ba‘alei ḥayyim</i> is permissible only for the sake of “the king’s honor which is the honor of the multitude.” Cf., also, <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 9. [It should be noted, however, that experimentation designed to benefit the public at large is to be regarded as undertaken for the sake of “the honor of the multitude”; see R. Abraham Hafuta, <i>No‘am</i>, IV (5721), 224.] <i>Noda bi-Yehudah, Mahadura Tinyana, Yoreh De‘ah</i>, no. 10, assumes that <i>Issur ve-Heter</i> cites <i>Piskei Tosafot</i> rather than <i>Tosafot</i>. The phraseology employed by <i>Piskei Tosafot</i> is “there is no prohibition of <i>ẓa‘ar ba‘alei ḥayyim</i> other than if he derives no <i>‘revaḥ.’</i> ” The term “<i>revaḥ</i>” is somewhat ambiguous and has the connotation of either “profit” or “benefit.”</i> Thus, <i>Issur ve-Heter</i> apparently regards <i>za'ar ba'alei ḥayyim</i> which is designed to serve other needs, e.g., financial profit, as improper and forbidden.51<i class="footnote">See <i>Or Gadol, Shabbat</i> 24:1, who endeavors to demonstrate that the permissibility of <i>ẓa‘ar ba‘alei ḥayyim</i> in order to prevent financial loss is the subject of dispute among early authorities. According to <i>Or Gadol</i>, Rashi permits <i>ẓa‘ar ba‘alei ḥayyim</i> in such circumstances while Ramban and Rashba maintain that <i>ẓa‘ar ba‘alei ḥayyim</i> for avoidance of financial loss is forbidden.</i>
  Among latter-day authorities, R. Yitzchak Dov Bamberger is quoted by R. Jacob Ettlinger, <i>Teshuvot Binyan Ẓion</i>, no. 108, as asserting that Rema permits <i>za'ar ba'alei ḥayyim</i> "only when there is need for medical purposes even for a patient who is not dangerously ill, but we have not found that he permitted <i>za'ar ba'alei ḥayyim</i> for financial profit."52<i class="footnote">Evidence in support of the position that <i>ẓa‘ar ba‘alei ḥayyim</i> is permitted for financial gain adduced from the statement of the Mishnah, <i>Avodah Zarah</i> 13b, permitting removal of a digit from the foot of a chicken is dismissed by <i>Binyan Ẓion. Binyan Ẓion</i> argues that, in declaring this practice to be permissible, the Mishnah adopts the position that <i>ẓa‘ar ba‘alei ḥayyim</i> is prohibited only by virtue of rabbinic decree, but that, in accordance with the accepted opinion that <i>ẓa‘ar ba‘alei ḥayyim</i> is biblically proscribed, dispensation for such acts does not exist. <i>Ḥavalim ba-Ne‘imim</i>, I, no. 43, sec. 3, offers the explanation that the Mishnah intends to permit the removal of a digit “only by utilization of a drug which does not entail pain to the chicken.” See also <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 14, and <i>Naḥal Eshkol, Hilkhot Avodah Zarah</i> 45:6. Painless amputation by means of a drug was known in the days of the Talmud; see <i>Baba Kamma</i> 85a and Rashi, <i>ad loc.</i>, <i>s.v</i>. <i>bein sam le-sayif</i>. Presumably, reference is to use of a local anesthetic which was known in the days of the Talmud; see <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 15.</i> This interpretation of Rema is difficult to sustain for two reasons: (1) Rema, <i>Shulḥan Arukh, Even ha-Ezer</i> 5:14, rules that "anything which is necessary in order to effect a cure <i>or for other matters</i> does not entail [a violation] of the prohibition against <i>za'ar ba'alei ḥayyim</i>." (2) Rema, <i>Shulḥan Arukh, Yoreh De'ah</i> 24:8, indicates that plucking feathers from a live bird is permissible as a matter of normative law. The feathers plucked in this manner are designed for use as quills. No one has suggested that the procedure is permitted only if the quill is needed by a physician in order to write a prescription; indeed, such an interpretation could not be sustained since Rema's caveat regarding the non-acceptability of such practices does not apply to procedures required by reason of medical need.53<i class="footnote">Rabbi Bamberger’s letter to <i>Binyan Ẓion</i> has now been published in <i>Teshuvot Yad ha-Levi</i>, I, <i>Yoreh De‘ah</i>, no. 196. Upon examination of his comments, it is evident that Rabbi Bamberger does not attempt to interpret Rema’s comments but rather expresses disagreement with <i>Terumat ha-Deshen</i>.</i> Nevertheless, R. Moshe Yonah Zweig, <i>Ohel Mosheh</i>, I, no. 32, sec. 11, cites Rabbi Bamberger's position as meriting serious consideration.54<i class="footnote">See also <i>Teshuvot Toldot Ya‘akov, Yoreh De‘ah</i>, no. 33, and <i>Apei Zutrei, Even ha-Ezer</i> 5:25. Cf., however, R. Eliezer Waldenberg, <i>Ẓiẓ Eli‘ezer</i>, XIV, no. 68, sec. 5.</i> Rabbi Ettlinger himself, however, distinguishes between "great pain" and "minor pain" and permits minor pain for other "definite" benefits as well.55<i class="footnote">See above, note 11. In support of his position <i>Binyan Ẓion</i> cites the statement of the Gemara, <i>Bekhorot</i> 36b, countenancing infliction of a blemish upon an entire flock of animals in order to circumvent the requirement that every tenth animal be offered as a sacrifice. For a rebuttal of that argument, see <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 2.</i> R. Eliyahu Klatzkin, <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 1, adopts an intermediate position in stating that Rema intended to permit <i>za'ar ba'alei ḥayyim</i> for medical purposes or for purposes of similar importance and necessity, but not simply for the purpose of financial gain. <i>Imrei Shefer</i> does not indicate what these purposes of similar necessity might be. In support of the position that <i>za'ar ba'alei ḥayyim</i> may not be sanctioned for financial gain, <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 1, cites the statement of the Gemara, <i>Baba Batra</i> 20a. The Gemara forbids the severing of a limb from a live animal in order to feed it to dogs because of considerations of <i>za'ar ba'alei ḥayyim. Imrei Shefer</i> notes that were the limb to be fed to the dogs, their master would benefit financially in not having to provide other food on their behalf. Moreover, notes <i>Imrei Shefer</i>, in the case under discussion, the limb had already been severed but remained attached to the body. The removal of such a "hanging" limb, asserts <i>Imrei Shefer</i>, would not significantly increase the animal's pain. Evidently, then, concludes <i>Imrei Shefer</i>, monetary gain is not sufficient to obviate the prohibition concerning <i>za'ar ba'alei ḥayyim</i>.56<i class="footnote">The identical source was earlier adduced by R. Yitzchak Dov Bamberger, <i>Teshuvot Yad ha-Levi</i>, I, <i>Yoreh De‘ah</i>, no. 196, as evidence that <i>ẓa‘ar ba‘alei ḥayyim</i> is not permitted for the sake of financial gain.</i>
  However, the majority of rabbinic authorities regard financial gain as a legitimate "need" or "benefit" which, at least as a matter of law, may be fostered even at the expense of <i>za'ar ba'alei ḥayyim</i>. The comments of a number of authorities who espouse this view have been cited earlier. Other authorities who permit <i>za'ar ba'alei ḥayyim</i> for monetary advantage include R. Moses Sofer, <i>Hagahot Hatam Sofer, Baba Mezi'a</i> 32b,57<i class="footnote">See also <i>Teshuvot Ḥatam Sofer</i>, <i>Ḥoshen Mishpat</i>, no. 185, <i>s.v. ma she-katavta me-Rabad</i>. Cf., however, <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no 314, <i>s.v. omnam</i>; and <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 2.</i> who remarks that the prohibition does not apply when the act is performed "for the benefit of human beings, their honor58<i class="footnote">R. Moses Feinstein, <i>Iggerot Mosheh, Ḥoshen Mishpat</i>, II, no. 47, sec. 1, citing Ran, <i>Baba Meẓi‘a</i> 32a, similarly rules that <i>ẓa‘ar ba‘alei ḥayyim</i> is permissible only for purposes of human “honor.”</i> or financial benefit."59<i class="footnote"><i>Teshuvot Rav Pe’alim</i>, I, <i>Yoreh De‘ah</i>, no. 1, rules that <i>ẓa‘ar ba‘alei ḥayyim</i> is permitted when designed for human benefit, but only if the desired benefit cannot be achieved in another manner. <i>Rav Pe’alim</i> cites <i>Teshuvot Rema Panu</i>, no. 102, who forbids placing a bird upon eggs of another species in order to hatch them. Since <i>Rav Pe’alim</i> assumes that <i>ẓa‘ar ba‘alei ḥayyim</i> is permitted even for the purpose of financial profit, he declares that the ruling of <i>Teshuvot Rema Panu</i> applies only in situations in which a bird of the same species is available. See also <i>Kiẓur Shulḥan Arukh</i> 191:4 and <i>Pitḥei Teshuvah, Yoreh De‘ah</i> 293:1.</i> An identical position is adopted by <i>Teshuvot Avodat ha-Gershuni</i>, no. 13; <i>Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Yoreh De'ah</i>, no. 10, <i>s.v</i>. <i>ve-omnam</i>;60<i class="footnote">Cf. <i>Teshuvot Noda bi-Yehudah, Mahadura Kamma, Yoreh De‘ah</i>, no. 83.</i> <i>Teshuvot Panim Me'irot</i>, I, no. 75; <i>Teshuvot Pri Yizḥak</i>, I, no. 24; and <i>Teshuvot Yad Eliyahu, Ketavim</i> 3:5.61<i class="footnote">There are also a number of authorities whose comments yield the conclusion that either <i>ẓa‘ar ba‘alei ḥayyim</i> is permissible for purposes of financial gain or that putting an animal to death involves no infraction of the prohibition against <i>ẓa‘ar ba‘alei ḥayyim. Taz, Yoreh De‘ah</i> 117:4, reports that he was asked by a person engaged in the sale of hides whether it is permissible to kill an animal by means other than ritual slaughter because the hide of an animal slaughtered in the ritual manner commanded a lower price. The Gemara, <i>Ḥullin</i> 27b and 85b, indicates that, when the blood of an animal is required for a beneficial purpose, the animal may be put to death by means other than ritual slaughter. See <i>Shulḥan Arukh, Yoreh De‘ah</i> 28:18, and <i>Derishah, Yoreh De‘ah</i> 28:6. Similarly, <i>Taz, Yoreh De‘ah</i> 116:6, quotes <i>Yam shel Shlomoh, Baba Kamma</i> 10:37, to the effect that one who owns a dog that causes damage or destroys food may poison the dog even though it presents no danger to human beings and that the destruction of the animal involves no prohibition of <i>ẓa‘ar ba‘alei ḥayyim</i>. See also <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 103, cited above, note 25.</i> <i>Pri Hadash, Yoreh De'ah</i> 53:7, permits the severing of a broken wing from a bird so that the jagged edge will not perforate an internal organ and thereby render the bird non-kosher and hence unfit for consumption. According to <i>Pri Hadash, za'ar ba'alei ḥayyim</i> is warranted under such circumstances because of potential financial loss. Among contemporary authorities, a similar view is expressed by R. Yitzchak Ya'akov Weisz, <i>Teshuvot Minḥat Yizḥak</i>, VI, no. 145. 
  IV. Morality Beyond the Requirements of the Law
  Despite his ruling that plucking feathers from a live bird for use as quills is permitted as a matter of law, Rema adds the comment that people refrain from doing so because of the inherent cruelty involved in this practice.62<i class="footnote">See R. Jacob Emden, <i>She’elat Ya‘ave&amp;x1E93;</i>, I, no. 110, who reports that the renowned kabbalist R. Isaac Luria, known as the <i>Ari ha-Kadosh</i>, directed his disciples not to kill “even a louse.” <i>She’elat Ya‘ave&amp;x1E93;</i> states that this directive was based upon “the trait of piety and upon [kabbalistic] mystery.” An opposing view is adopted by <i>Sefer Ḥasidim</i> (ed. Reuben Margulies), no. 831:</i> The immediate source of both this caveat and of the normative ruling regarding the plucking of feathers is the fifteenth-century rabbinic decisor, R. Israel Isserlein, <i>Terumat ha-Deshen, Pesakim u-Ketavim</i>, no. 105. <i>Terumat ha-Deshen</i>, however, elaborates somewhat and presents a talmudic source for the popular renunciation of this practice. <i>Terumat ha-Deshen</i> states, "… and perhaps the reason is that people do not wish to act with the trait of cruelty vis-à-vis creatures for they fear lest they receive punishment for that, as we find in chapter <i>Ha-Po'alim</i> with regard to our holy teacher."63<i class="footnote">Cf., however, <i>She’elat Ya‘ave&amp;x1E93;</i>, I no 110, who asserts that “perhaps” the calf was the incarnation of a human soul and that this fact was known to R. Judah.</i> It is particularly noteworthy that <i>Terumat ha-Deshen</i> suggests the possibility of divine punishment for cruelty toward animals even in a situation in which no infraction of normative law is involved.64<i class="footnote">Cf., however, <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 10, who asserts that <i>Terumat ha-Deshen</i> seeks to establish a normative halakhic principle “for if the matter were permitted there would be no suspicion of punishment.”</i>
  The talmudic source cited by <i>Terumat ha-Deshen</i> is an anecdote concerning R. Judah the Prince related by the Gemara, <i>Baba Mezi'a</i> 85a.65<i class="footnote">R. Nathan Zevi Friedman, <i>No‘am</i>, V (5722), 190, seeks another talmudic source for Rema’s comment and, in doing so, apparently overlooks the fact that <i>Terumat ha-Deshen</i> himself cites <i>Baba Meẓ‘ia</i> 85a as his source.</i> R. Judah suffered excruciating pain for many years until the pain subsided suddenly. In the following narrative, the Gemara explains both why R. Judah experienced suffering and why the suffering was ultimately alleviated:
  A calf, when it was being to taken to slaughter, went and hung its head under Rabbi [Judah]'s cloak and cried. He said to it. "Go, for this wast thou created." [In heaven] they said, "Since he has no mercy, let suffering come upon him." … One day Rabbi [Judah]'s maidservant was sweeping the house; some young weasels were lying there and she was sweeping them away. Rabbi [Judah] said to her, "Let them be; it is written 'And His tender mercies are over all His works' (Psalms 145:9)." [In heaven] they said. "Since he is compassionate, let us be compassionate to him."
  Reflected in this account, and in the halakhic principle derived there-from, is the distinction between normative law and ethical conduct above and beyond the requirements of law (<i>lifnim mi-shurat ha-din</i>).66<i class="footnote">A somewhat parallel, although less clearly developed, concept may be found in Aristotle’s notion of “superhuman virtue” which he defines as “a kind of heroic and divine excellence.” See <i>Nicomachean Ethics</i>, Book VII, 1145a. The concepts are, however, dissimilar in that Aristotle’s superhuman virtue appears to be essentially unobtainable and, indeed, Aristotle presents no imperative for seeking its attainment, whereas in Jewish teaching all persons may, and indeed should, aspire to act <i>lifnim mi-shurat ha-din</i>. Also, for Aristotle, superhuman virtue is a quality of character from which certain modes of conduct flow. There is no indication that Aristotle ascribes any moral value to an act which merely mimics the conduct of one who has acquired this quality of character. In Jewish teaching, the act itself is deemed meritorious.</i> In its normative law, Judaism codifies standards applicable to everyone and makes no demands that are beyond the capacity of the common man; but, at the same time, Jewish teaching recognizes that, ideally, man must aspire to a higher level of conduct. That higher standard is posited as a moral desideratum, albeit a norm which is not enforceable by human courts. Not every person succeeds in reaching a degree of moral excellence such that he perceives the need and obligation to conduct himself in accordance with that higher standard. Those who do attain such a level of moral perfection are obliged, at least in the eyes of Heaven, to conduct themselves in accordance with that higher standard. No human court can inquire into the degree of moral perfection attained by a particular individual and, hence, such a court cannot apply varying standards to different persons. The heavenly court, however, <i>is</i> in a position to do so and, accordingly, will punish a person who does not comport himself in accordance with the degree of moral perfection which he has attained. Thus, the Gemara, <i>Baba Kamma</i> 50a, cites the verse "And it shall be very tempestuous about Him" (Psalms 50:3) and, in a play on the Hebrew word <i>"se'arah</i>" which connotes both "tempestuous" and "hair," declares that "the Holy One, blessed be He, is particular with those around Him even with regard to matters as light as a single hair."
  R. Yechiel Ya'akov Weinberg, <i>Seridei Esh</i>, III, no. 7, hastens to point out that Rema's cautionary statement with regard to normatively permitted forms of <i>za'ar ba'alei ḥayyim</i> should not be construed as applicable to medical experimentation. In a short comment, <i>Seridei Esh</i> rejects the application of Rema's remarks to medical experimentation for what really are three distinct reasons: (1) Moral stringencies beyond the requirements of law are personal in nature; a person may accept stringencies of piety for himself but may not impose them upon others. (2) Elimination of pain and suffering of human beings takes precedence over considerations of animal pain. (3) The concern for avoiding pain to animals, even when it is halakhically permitted to cause such pain, is germane only at the cost of foregoing benefit to an individual but not when benefit may accrue to the public at large. The last point is supported by the fact that no hesitation is expressed with regard to inflicting pain upon animals for the sake of "the honor of kings," which is tantamount to the honor of the entire community, as evidenced by the earlier cited statement of the Gemara, <i>Avodah Zarah</i> 11a, which sanctions hamstringing the steed of the deceased monarch. 
  <i>Seridei Esh'</i>s comments are in opposition to the view expressed by <i>Helkat Ya'akov</i>, I, no. 30, sec. 6, to the effect that, although medical experimentation upon animals is certainly permissible as a matter of law,67<i class="footnote">The sole rabbinic authority to express reservations with regard to the permissibility of animal experimentation as a matter of normative law is <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 16. <i>Imrei Shefer</i> declares that “it is not clear” that <i>ẓa‘ar ba‘alei ḥayyim</i> is permitted “for the purpose of tests and experiments.” <i>Imrei Shefer</i> readily acknowledges that <i>ẓa‘ar ba‘alei ḥayyim</i> is clearly permitted for therapeutic purposes, but distinguishes between therapeutic procedures of demonstrated value and experimentation which is undertaken on the mere possibility that “perhaps there will emerge from this benefit through medical science.” [It may be noted that <i>Teshuvot Noda bi-Yehudah, Mahadura Kamma, Yoreh De‘ah</i>, no. 83, similarly suggests that <i>ẓa‘ar ba‘alei ḥayyim</i> may not be permissible when undertaken to avoid possible, but uncertain, transgression. <i>Noda bi-Yehudah</i> himself, however, concludes that, at least in some circumstances, <i>ẓa‘ar ba‘alei ḥayyim</i> is permissible in order to eliminate the potential for transgression.] <i>Imrei Shefer</i> concludes that “we cannot conclusively determine whether, in accordance with the precepts of our holy Torah, license is granted to Jewish physicians to engage in those tests on the bodies of living creatures.” As has been noted earlier, <i>Da’at Kedoshim, Yoreh De‘ah</i> 24:12, explicitly affirms that the concept of benefit to man includes even “possible benefit.” See above, note 42.The distinction drawn by <i>Imrei Shefer</i> between <i>ẓa‘ar ba‘alei ḥayyim</i> designed for direct therapeutic benefit and experimentation for the general advancement of medical knowledge is, in effect, an application of a principle of Jewish law first enunciated by <i>Noda bi-Yehudah, Mahadura Tinyana, Yoreh De‘ah</i>, no. 210, in a classic responsum regarding post-mortem examinations. <i>Noda bi-Yehudah</i> states definitively that the suspension of virtually any prohibition is warranted in face of an already present danger, or, in rabbinic terminology, in the case of a <i>ḥoleh le-faneinu</i> (lit: “a patient in front of us”). The concept of a <i>ḥoleh le-faneinu</i> is, roughly speaking, the halakhic equivalent of “a clear and <i>present</i> danger.” Prohibitions are suspended for the purpose of saving an endangered life, but not in anticipation of a purely hypothetical eventuality. Accordingly, <i>Noda bi-Yehudah</i> rules that performance of an autopsy is warranted in order to obtain specific information of value in the treatment of another similarly afflicted patient, but not in the vague hope that some potentially life-saving knowledge may be gained in the process of the post-mortem examination. <i>Imrei Shefer</i> appears to apply the same principle to experimentation upon animals.</i> nevertheless, in accordance with Rema's caveat, it is proper to refrain from inflicting pain upon animals even for such purposes "as a matter of piety to preserve [oneself] from the trait of cruelty." More recently, a member of the Supreme Rabbinical Court of Israel, R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, XIV, no. 68, found no difficulty in supporting medical experimentation upon animals but urged that pain be minimized insofar as possible. 
  In one of the earliest responsa which specifically address the question of the permissibility of animal experimentation, <i>Shevut Ya'akov</i>, III, no. 71, draws yet another distinction between plucking feathers, which is eschewed as a form of cruelty, and certain types of medical experimentation. <i>Shevut Ya'akov</i> was asked whether the toxicity of certain medications might be tested by feeding them to dogs or cats. <i>Shevut Ya'akov</i> replies in the affirmative and states that feeding a possibly poisonous substance to an animal is not comparable to plucking the feathers of a goose. In the latter case, the pain is caused directly and is immediately perceived with the plucking of each feather. On the other hand, the pain caused to an animal as a result of imbibing a poisonous substance is neither direct nor immediate and hence, rules <i>Shevut Ya'akov</i>, there is no reason to refrain from such experimentation "even as an act of piety." The cogency of this distinction lies in the recognition that, according to Rema, the concern with regard to <i>za'ar ba'alei ḥayyim</i> in cases in which a human need exists is not with regard to the welfare of the animal but with regard to the possible moral degeneration of the human agent who may acquire traits of cruelty as a result of performing acts which are objectively cruel even when such acts are warranted under the attendant circumstances. Apparently, <i>Shevut Ya'akov</i> feels that concern for developing a cruel disposition exists only when the human act is the immediate and proximate cause of perceivable pain, but not when the act is not immediately associated with the pain experienced by the animal. Quite obviously, <i>Shevut Ya'akov'</i>s distinction does not apply to forms of medical experimentation in which the pain is immediately attendant upon the procedure performed, e.g., unanesthetized vivisection, while the criteria formulated by <i>Seridei Esh</i> apply to such situations as well. 
  It should, however, be noted that the foregoing analysis of the consideration underlying the practice of refraining from plucking feathers from a live animal is not at all obvious. As has been noted earlier, <i>Terumat ha-Deshen</i>, who is the source of Rema's remarks, declares that this practice is eschewed because of fear of punishment for causing pain to animals even when the practice is entirely permissible, as is evidenced in the narrative concerning R. Judah and the calf recorded in the Gemara, <i>Baba Mezi'a</i> 85a. Ostensibly, the concern reflected in that report is for the welfare of the animal. However, R. Judah Leib Zirelson, <i>Ma'arkhei Lev</i>, no. 110, interprets that narrative in a manner entirely compatible with what appears to be the premise underlying the distinction formulated by <i>Shevut Ya'akov. Ma'arkhei Lev</i> asserts that it is inconceivable that R. Judah was punished for allowing the calf to be slaughtered for its meat. Rather, declares <i>Ma'arkhei Lev</i>, he was punished for his outburst, "Go, for this wast thou created." That sharp remark betrayed a lack of sensitivity which was inappropriate for a person of R. Judah's moral stature. Thus it was for his own lack of sensitivity that R. Judah was punished, rather than for the suffering caused to the calf.68<i class="footnote">Cf. Maharsha, <i>Baba Meiẓi’a</i> 85a, and <i>Teshuvot Imrei Shefer</i>, no. 34, sec. 10 and sec. 12, who offer explanations for the censure of R. Judah which differ from the explanation advanced by <i>Ma‘arkhei Lev</i> but which are entirely consistent with the conclusion reached by <i>Ma‘arkhei Lev</i>.</i>
  <i>Ma'arkhei Lev</i> himself draws a much broader distinction between the conduct frowned upon by Rema and other uses to which animals may be put without breach of even the "trait of piety" commended by Rema. According to <i>Ma'arkhei Lev</i>, the crucial factor is the element of necessity. Quills may be removed from dead fowl as readily as from live ones. Hence, plucking feathers from a live bird is an entirely unnecessary act of cruelty, even though the act itself serves a human purpose. According to <i>Ma'arkhei Lev</i>, in any situation in which there exists a need which cannot otherwise be satisfied, it is not improper to cause discomfort to animals, and refraining from doing so does not even constitute an act of piety. R. Judah was punished, asserts <i>Ma'arkhei Lev</i>, because his sharp and impulsive remark was entirely gratuitous. In support of this thesis <i>Ma'arkhei Lev</i> cites a ruling recorded in <i>Shulḥan Arukh, Oraḥ Hayyim</i>, 362:5. On the Sabbath it is permissible to carry objects only within an enclosed area. <i>Shulḥan Arukh</i> rules that an enclosure may be formed by stationing animals in a manner such that they constitute a "wall," but only on the condition that the animals are bound so that they remain immobile. Animals forced to remain in a stationary position for the duration of an entire Sabbath day certainly experience discomfort. Nevertheless, none of the commentaries on <i>Shulḥan Arukh</i> indicate that, in light of Rema's caveat regarding plucking feathers from a live fowl, the practice of utilizing animals for fashioning a "wall" should be eschewed.69<i class="footnote">See, however, R. Chaim Pelaggi, <i>Ruaḥ Ḥayyim</i>, no. 630, who cites this ruling as evidence that <i>ẓa‘ar ba‘alei ḥayyim</i> is permitted “for the purpose of a <i>miẓvah.” A</i> similar view was earlier expressed by <i>Shiltei Gibborim, Avodah Zarah</i> 1:21, and <i>Knesset ha-Gedolah, Ḥoshen Mishpat</i> 240:6. See also <i>Sedei Ḥemed, Ma’arekhet ha-Ẓadi</i>, no. 1, who maintains that the treatment of the scapegoat sent into the wilderness and destroyed in conjunction with the ritual of <i>Yom Kippur</i> serves as a paradigm permitting <i>ẓa‘ar ba‘alei ḥayyim</i> for the purpose of fulfilling any <i>miẓvah</i>. The difficulty raised by <i>Ma‘arkhei Lev</i> is readily resolved if, as may be assumed, it is recognized that Rema’s caveat does not apply to <i>ẓa‘ar ba‘alei ḥayyim</i> in a matter pertaining to a <i>miẓvah</i>.</i> The reason that they fail to do so, argues <i>Ma'arkhei Lev</i>, lies in the distinction which must be drawn between a use of animals which is essential for achieving a purpose pertaining to human welfare and one which, while it serves a purpose, is nevertheless not absolutely necessary in order to achieve the desired end.70<i class="footnote">The analysis of Rema’s position as presented by <i>Ma’arkhei Lev</i> seems to be at variance with that of <i>Taz, Even ha-Ezer</i> 5:11. <i>Taz</i> remarks that, in accordance with Rema’s caveat, it is improper to remove the comb of a rooster. However, since the presumed sterilization does serve a need which cannot be achieved in another manner, according to <i>Ma’arkhei Lev</i>’s analysis, removal of the comb should be sanctioned even according to Rema.</i>
  V. Conclusions
  Jewish law clearly forbids any act which causes pain or discomfort to an animal unless such act is designed to satisfy a legitimate human need. All authorities agree that hunting as a sport is forbidden. Although many authorities maintain that it is not forbidden to engage in activities which cause pain to animals in situations in which such practices yield financial benefits, there is significant authority for the position that animal pain may be sanctioned only for medical purposes, including direct therapeutic benefit, medical experimentation of potential therapeutic value and the training of medical personnel.71<i class="footnote">This does not apply to painful procedures performed on living animals by students enrolled in laboratory courses as part of their general education. See R. Joel Schwartz, <i>Ve-Raḥamav al Kol Ma’asav,</i> p. 56. It should be stressed that even those authorities who sanction the infliction of pain upon animals for the benefit of human beings do so only when the benefit is practical in nature, but not merely for the satisfaction of intellectual curiosity. Thus, even according to those authorities, only experiments directly related to the development of a specific skill necessary for fulfillment of the student’s professional or vocational goal may be sanctioned. Nevertheless, in this writer’s opinion, students directed to perform such procedures as part of the course requirements for purposes of earning an academic degree may perform such acts according to the opinion of those authorities who sanction <i>ẓa’ar ba’alei ḥayyim</i> for financial gain or for the fulfillment of a human need since the earning of a degree leads directly to economic gain. However, since acquisition of theoretical knowledge for its own sake and perfection of skills which are not intended for applied use do not constitute such a need, it is improper for educators to impose such requirements upon students for general educational purposes. Castration, spaying and sterilization of living animals is forbidden by biblical law. Accordingly, Jewish students and practitioners may not perform such acts even in situations in which considerations of <i>za’ar ba’alei ḥayyim</i> do not pertain. Whether such acts are also prohibited to Noachides is the subject of some controversy both among the Tanna’im and among rabbinic decisors; see <i>Encyclopedia Talmudit,</i> III, 356.</i> <i>A fortiori,</i> those who eschew the latter position would not sanction painful procedures for the purpose of testing or perfecting cosmetics. An even larger body of authority refuses to sanction the infliction of pain upon animals when the desired benefit can be acquired in an alternative manner,72<i class="footnote"><i>Ma’arkhei Lev</i>, no. 110.</i> when the procedure involves "great pain,"73<i class="footnote"><i>Teshuvot Binyan Ẓion</i>, no. 108.</i> when the benefit does not serve to satisfy a "great need,"74<i class="footnote"><i>Pri Megadim, Oraḥ Ḥayyim, Mishbeẓot Zahav</i> 468:2.</i> when the same profit can be obtained in another manner,75<i class="footnote"><i>Teshuvot Rav Pe’alim,</i> I, <i>Yoreh De‘ah</i>, no. 1.</i> or when the benefit derived is not commensurate with the measure of pain to which the animal is subjected.76<i class="footnote"><i>Teshuvot Sho’el u-Meshiv, Mahadura Tinyana</i>, III, no. 65; and R. Tevel the Physician quoted by <i>Teshuvot Avodat ha-Gershuni</i>, no. 13.</i> Even when the undertaking is designed to promote human welfare, there is greater justification for causing the swift and painless death of an animal than for subjecting it to procedures which cause suffering to a live animal. 
  Judaism recognizes moral imperatives which establish standards more stringent than the standard of conduct imposed by law. According to the view of most authorities, those moral imperatives should prompt man to renounce cruelty to animals even when the contemplated procedure would serve to promote human welfare. 
  Medical experimentation designed to produce therapeutic benefit to mankind constitutes an exception to this principle77<i class="footnote">Israel-Michael Rabbinowicz, <i>La médecine du Thalmud</i> (Paris, 1880), p. 56, note 1, and p. 57, note 1, cites therapeutic procedures performed upon animals which are reported by the Gemara, <i>Ḥullin</i> 57b, as evidence that vivisection was performed by the Sages of the Mishnah. See, however, <i>Teshuvot Imrei Shefer,</i> no. 34, sec. 16, who refutes this contention arguing that those procedures were undertaken to correct injuries sustained in accidents or the like.</i> and is endorsed by virtually all rabbinic authorities. Nevertheless, as stated by R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer,</i> XIV, no. 68, sec. 7, it is no more than proper that, whenever possible, such experimentation be conducted in a manner such that any unnecessary pain is avoided and, when appropriate, the animal subject should be anesthetized. 
  It is generally assumed by laymen that the shooting is much more humane than the older methods. They suppose that the cutting of the throat is a most painful operation, and that struggling movements are necessarily a sign of pain. Educated in the false ideas and statements of writers of romance, they are easily led astray by agitators having no knowledge of physiological science, nor surgical experience. Now the surgeon knows that sudden big injuries are not felt at the time of their infliction. He knows, moreover, that structures beneath the skin, apart from sensory nerves, are sensitive to the knife. It is well known that men injured in battle—severely and perhaps fatally—often fight on unaware that they are wounded until they see the blood or become exhausted. At most the wounded feel a dull sensation of a blow and numbness in the injured part. Pain comes later when a wound becomes septic and inflamed. The merciful insensitiviteness of man to severe injury was impressed upon me, when I was a young house surgeon, by two cases—one of a man with his pelvis crushed between the buffers of a train. Conscious, although collapsed, he was able to tell me that he had felt no pain; shortly afterwards he died of shock. A similar case was that of a man impaled by the shaft of an iron railing through falling out of a window. 
  In defending the Jewish method of slaughter from unjust attack, the distinguished surgeon Mr. T. H. Openshaw stated that several cases of throat-cutting, which surviving from their injury had come under his care at the London Hospital, were questioned by him. Not one of these had felt the cut when it was made. When a very sharp knife is used to cut the healthy (not inflamed) skin, very little pain is felt—even by a man who is expecting the cut—particularly so in parts, such as the back, which are not so trained to delicate sensibility as the finger-tips. Horses standing loose in a stall are bled from the jugular vein for the obtaining of anti-diphtheritic serum; they continue during the operation to eat placidly at the manger. Sensitive as the horse is to the sting of a fly, or whip, or prick of a spur, it takes no notice of the cut of a sharp knife. The skin has been evolved sensitive only to those things which concern it in the natural struggle for existence, and deep structures, apart from sensory nerves, protected as they are by the skin, are wholly insensitive to touch. The touch of whip or spur is like the sting of a fly, and is therefore felt by the horse, which must protect himself against a natural enemy; on the other hand, the cut of a sharp knife is not a natural stimulus and is unfelt. 
  Of these facts laymen are, as a rule, wholly ignorant. As to the duration of consciousness after the cutting of the throat, I can cite an experiment made by myself some years ago when, together with Mr. Openshaw, I defended the Jewish method of slaughter. I anesthetized a calf and inserted a tube in the peripheral end of the carotid artery—that is, in the end connected with the arteries supplying the brain. It must be borne in mind that the vertebral arteries do not supply the brain of cattle but end in the muscles of the head. The tube placed in the artery was filled with a strong saline solution to prevent clotting of the blood, and connected with a mercurial manometer arranged so as to record (on a revolving drum) the blood pressure. The animal's neck was then cut with a sharp knife so as to divide the great blood-vessels at one stroke. The manometer recorded an instant fall of blood pressure which reached zero in a second or two, showing that the circulation in the great brain has ceased. Now we know by human experience that such sudden cessation of the circulation by depriving the brain of oxygen instantly abolishes consciousness, whether produced by pressure on the brain or by heart failure, or by occlusion of the great blood-vessels of the neck. An old medical writer tells of a beggar in Paris who had a large hole in his skull covered with skin. He sat in the street and for a coin allowed a person to press upon his brain, when he fell asleep. The moment the pressure was withdrawn he became conscious again. The very word carotid betokens sleep. Mountebanks used to compress these arteries in a goat and make the animal fall down unconscious or spring up again at their will. The garroter by compressing these arteries by a grip from behind rendered his victim unconscious while he robbed him of his watch and money. A schoolboy playing at hanging has lost consciousness through the sudden compression of these arteries and has died in consequence. This unhappy accident has been repeated through a general ignorance of the danger. 
  Two facts are, then, indisputably established: (1) that a big injury, such as throat-cutting, is not felt at the moment of infliction; (2) that the cutting of the big arteries in the throat instantly arrests the circulation in the great brain and abolishes consciousness. 
  As anyone who has slit a finger on a page of a magazine knows, the pain from such a cut comes not during the actual cutting, but afterwards when the edges of the cut are rubbed or pressed together and the nerve endings in the skin are stimulated. The edges of the cut neck cannot be thus brought together after <i>Shechita</i> simply because of the animal's hanging position. 
  There were two people. One did not want to burn the flies. His friend said to him, " 'Be not righteous overmuch' (Ecclesiastes 7:16). Better to burn the flies so that they shall not fall into the food and drink. [Then] one who swallows them will sin. Therefore it is written 'Be not righteous overmuch.' "
  
  Chapter X Vegetarianism and Judaism
  
  <i>Man will be called to account with regard to everything that his eye beheld but of which he did not eat.</i>
  PALESTINIAN TALMUD, KIDDUSHIN 4:12
  I. The Ideological Perspective
  In Jewish teaching, not only are normative laws regarded as binding solely upon the authority of divine revelation, but ethical principles as well are regarded as endowed with validity and commended as goals of human aspiration only if they, too, are divinely revealed. In his comments upon the introductory section of <i>Ethics of the Fathers,</i> R. Ovadiah of Bartenura questions the import of the initial statement of that tractate, "Moses received the Torah from Sinai and transmitted it to Joshua." That statement would have been appropriate as an introduction to the Mishnah as a whole and, as such, would have served as an affirmation of the divine nature of the Oral Law in its entirety, but it seems rather incongruous <i>in medias res.</i> Bartenura explains the incorporation of this statement at the beginning of <i>Ethics of the Fathers</i> by remarking that, unlike other tractates, <i>Ethics of the Fathers</i> is not devoted to an explication of any particular commandment but is composed in its entirety of ethical maxims. "The wise men of the nations of the world," declares Bartenura, "authored ethical treatises in accordance with the inclination of their hearts." Therefore, this tractate, devoted as it is exclusively to matters of ethical conduct, begins with this prefatory statement in order to indicate that "even these [ethical principles] were stated at Sinai." Accordingly, even though Judaism certainly does not posit vegetarianism as a normative lifestyle, its value as a moral <i>desideratum</i> can be acknowledged only if support is found within the corpus of the Written or Oral Law. 
  A prooftext often cited in support of vegetarianism as an ideal to which man should aspire is a statement recorded in <i>Sanhedrin</i> 59b:
  Rav Judah stated in the name of Rav, "Adam was not permitted meat for purposes of eating as it is written, 'for you shall it be for food and to all beasts of the earth' (Genesis 1:29), but not beasts of the earth for you. But when the sons of Noah came [He] permitted them [the beasts of the earth] as it is said, 'as the green grass have I given to you everything' (Genesis 9:3)."
  Some writers have regarded this statement as reflecting the notion that primeval man was denied the flesh of animals because of his enhanced moral status. Permission to eat the flesh of animals was granted only to Noah because, subsequent to Adam's sin, his banishment from the Garden of Eden and the degeneration of subsequent generations, man could no longer be held to such lofty moral standards. Nevertheless, they argue, man ought to aspire to the highest levels of moral conduct and, consistent with such a value system, man should eschew the flesh of animals. 
  In point of fact, this talmudic dictum is simply a terse statement of the relevant law prior to the time of Noah but is silent with regard to any validating rationale. While the statement in question may well be compatible with a vegetarian ideal, it may quite readily be comprehended as reflecting entirely different considerations. Indeed, the classic biblical commentators found entirely different explanations for the change which occurred with regard to dietary regulations. Thus, for example, R. Jacob ben Asher, renowned as the author of the <i>Tur Shulḥan Arukh,</i> in his commentary on Genesis 1:29, explains that, prior to partaking of the fruit of the Tree of Knowledge, Adam lacked any desire for meat; only subsequent to eating of the forbidden fruit did man acquire a carnivorous nature. Hence the dispensation granted to Noah to eat the flesh of animals simply reflects man's transformed biological needs. R. Meir Leibush Malbim, in his commentary on Genesis 9:3, remarks that Adam was endowed with a "strong" constitution and that the produce available in the Garden of Eden was nutritionally optimal in nature. Under such circumstances, Adam's dietary needs could be satisfied without recourse to meat. Only as mankind degenerated physically as well as spiritually, became geographically dispersed and hence subject to the vagaries of climate, and as the quality of available produce became nutritionally inferior, did it become necessary for man, in his "weakened" state, to supplement his diet with animal products in order to assure the availability of the nutrients required for his biological needs. 
  An examination of the writings of rabbinic scholars*<i class="footnote">*See end of chapter (p. 250).</i> reveals three distinct attitudes with regard to vegetarianism:
  (1) The Gemara, <i>Pesaḥim</i> 49b, declares that an ignoramus ought not to partake of meat: " 'This is the law of the animal … and the fowl' (Leviticus 11:46): whoever engages in [the study of] the Law is permitted to eat the flesh of animals and fowl, but whoever does not engage in [the study of] the Law may not eat the flesh of animals and fowl." This text should certainly not be construed as declaring that meat is permitted only to the scholar as a reward for his erudition or diligence.1<i class="footnote">This text has also been understood homiletically as underscoring the lesson that man was created to study Torah and that, should he fail to do so, he remains in a spiritual state analogous to that of lower animals. Since such a person has not developed his unique spiritual potential as a human being, he should not regard himself as endowed with superiority vis-a-vis members of the animal kingdom. See R. Isaac Arama, <i>Akeidat Yiẓḥak, Parshat Bashalaḥ, sha’ar</i> 41, and R. Moses Feinstein, <i>Iggerot Mosheh, Ḥoshen Mishpat,</i> II, no. 47, sec. 1. Cf., Maharal of Prague, <i>Netivot Olam,</i> chap. 15. <i>Shevet Mussar,</i> chap. 36, adduces this text in support of his contention that only the pious are superior to animals and hence only the pious are entitled to partake of the flesh of animals.</i> Maharsha indicates that this text simply reflects a concern for scrupulous observance of the minutiae of the dietary code. The ignoramus is not proficient in the myriad rules and regulations governing the eating of meat, including the differentiation between kosher and nonkosher species, the porging of forbidden fat and veins, the soaking and salting of meat, etc. Only the scholar who has mastered those rules and regulations can eat meat with a clear conscience. Indeed, an earlier authority, Rabbenu Nissim, citing R. Sherira Ga'on, explains that an ignoramus is advised to refrain from eating meat because he is ignorant of the proper method of performing ritual slaughter and of examining the internal organs. A similar interpretation is advanced by R. Moses Isserles, <i>Teshuvot Rema,</i> no. 65, who remarks that the ignoramus is not proficient in the laws of ritual slaughter. Maharsha notes that this stricture applies only to the eating of the flesh of land-animals but places no restriction upon the eating of fish, even though reference to fish is also made in the very same biblical verse. The reason for this distinction is that the dietary code pertaining to consumption of fish is relatively simple and can be mastered by everyone, while preparation of animal meat is governed by complex regulations requiring diligent study. Historically, there certainly have been individuals who, depending upon circumstances of time and place, did deny themselves meat, not because of the ethical implications of a carnivorous diet, but because of their concern for inadvertent transgression of provisions of the dietary code. For example, during the early part of the twentieth century, many pious immigrants to the United States declined to eat meat because of the lax standards of <i>kashrut</i> supervision then prevalent in this country. Such individuals adopted vegetarianism as a life-style, but did so because of concern for observance of the technicalities of religious law rather than because of moral considerations. 
  (2) A number of medieval scholars, including R. Issac Abarbanel in his commentary on Genesis 9:3 and Isaiah 11:7, and R. Joseph Albo, <i>Sefer ha-Ikkarim,</i> Book III, chapter 15, regard vegetarianism as a moral ideal, not because of a concern for the welfare of animals, but because of the fact that the slaughter of animals might cause the individual who performs such acts to develop negative character traits, viz., meanness and cruelty. Their concern was with regard to possible untoward effect upon human character rather than with animal welfare.2<i class="footnote">See also R. Abraham I. Kook, <i>Iggerot Re’iyah</i> (Jerusalem, 5722), II, 230.</i>
  Indeed, R. Joseph Albo maintains that renunciation of the consumption of meat for reasons of concern for animal welfare is not only morally erroneous but even repugnant. Albo asserts that this was the intellectual error committed by Cain and that it was this error that was the root cause of Cain's act of fratricide. Scripture reports that Cain brought a sacrifice of the produce of the land while Abel offered a sacrifice from the animals of his flock. Albo opines that Cain did not offer an animal sacrifice because he regarded men and animals as equals3<i class="footnote">In contemporary times some advocates of animal rights have adopted precisely this position in arguing that all sentient creatures have equal moral standing. According to this view, there is no moral difference between a man and a dog; hence the pain suffered by dogs must be weighed no differently from the pain suffered by humans. The most influential exposition of the moral equality of species is that of Peter Singer, <i>Animal Liberation</i> (New York, 1977).</i> and, accordingly, felt that he had no right to take the life of an animal, even as an act of divine worship. Abel shared the basic conviction of his brother but nevertheless maintained that man was superior to animals in that he possessed reason as demonstrated in his ability to use his intellect in cultivating fields and in shepherding flocks. This, Abel believed, gave man limited rights over animals, including the right to use animals in the service of God, but did not confer upon him the right to kill animals for his own needs. Abel's error was not as profound as that of Cain, but it was an error nonetheless. And, declares Albo, because Abel shared the error of his brother, at least to the degree of not recognizing the superiority of man over members of the animal kingdom, he was punished by being permitted to die at the hands of Cain. Albo further explains God's acceptance of Abel's sacrifice and His rejection of that of Cain as being directly related to their respective views regarding the relative moral status of men and animals. Cain's error was egregious in the extreme. Hence he was so lacking in favor in the eyes of God that his sacrifice was rejected. Although he was also guilty of error, Abel's sacrifice was accepted by God because his error was not as serious as that of his brother. According to Albo, Cain failed to understand the reason for the rejection of his sacrifice and continued to assume that his own value system was correct but that, in the eyes of God, animal sacrifice was intrinsically superior to the offering of produce. Since Cain remained confirmed in his opinion that man and animals are inherently equal, he was led to the even more grievous conclusion that just as man is entitled to take the life of an animal so also is he entitled to take the life of his fellow man. This position, Albo asserts, was adopted by succeeding generations as well and it was precisely the notion that men and animals are equal that led, not to the renunciation of causing harm to animals and to concern for their welfare, but rather to the notion that violence against one's fellow man was equally acceptable. The inevitable result was a total breakdown of the social order which ultimately culminated in punishment by means of the flood. Subsequent to the flood, meat was permitted to Noah, Albo asserts, in order to impress upon mankind the superiority of man over members of the animal kingdom. 
  Albo does not explain why the generations after the flood drew the correct conclusion and were not prone again to commit the error of Cain. Rather than recognizing the inherent superiority of man that is reflected in the dispensation granted them to partake of the flesh of animals, they might have concluded that violence against man is similarly justified because men and animals are coequal. It was precisely this conclusion that Cain drew from God's acceptance of animal sacrifice. It may, however, be possible that, at that juncture of human history, the possibility of drawing such a conclusion was effectively obviated. Genesis 7:23 declares that during the period of the flood God destroyed not only man but also every living creature. The Gemara, <i>Sanhedrin</i> 108a, queries, "If man sinned, what was the sin of the animals? Rabbi Joshua the son of Korḥah answered the question with a parable: A man made a nuptial canopy for his son and prepared elaborate foods for the wedding feast. In the interim his son died. The father arose and took apart the nuptial canopy declaring, 'I did nothing other than on behalf of my son. Now that he has died for what purpose do I need the nuptial canopy?' Similarly, the Holy One, blessed be He, said, 'I did not create animals and beasts other than for man. Now that man has sinned for what purpose do I need animals and beasts?' " Those comments serve to indicate that the extermination of innocent animals in the course of the Deluge must be regarded as proof positive of the superiority of man over members of the animal kingdom. Animals could be destroyed by a righteous God only because the sole purpose of those creatures was to serve man. Hence, if man is to be destroyed, the continued existence of animal species is purposeless. Thus the basic principle, i.e., the superiority of man over members of the animal kingdom, was amply demonstrated by the destruction of animals during the course of the flood. No further demonstration of the relative status of man and beasts was necessary. Permission to eat the flesh of animals was then required only as a means of explicitly negating the residual notion that animals are somehow endowed with rights and that man's obligations vis-a-vis animals are rooted in such rights rather than in a concern for the possible moral degeneration of man himself.4<i class="footnote">See R. Ben-Zion Firrer, <i>Panim Ḥadashot ba-Torah</i> (Jerusalem, 5735), I, 45.</i>
  Albo's basic position is reflected in a comment of <i>Bereshit Rabbah</i> 22:26 which indicates that Cain did not understand the enormity of his misdeed:
  And the Lord said unto him, "Therefore whosoever slayeth Cain, vengence shall be taken on him sevenfold" (Genesis 4:15). R. Nehemiah said, "The punishment of Cain is not as the punishment of other murderers. Cain killed but he had none from whom to learn [the enormity of his crime]. [But] henceforth whosoever slayeth Cain shall be slain."
  The implication of this statement is that Cain was not aware of the heinous nature of his crime. According to Albo, Cain lapsed into grievous moral error because, having accepted the equality of man and members of the animal kingdom, he regarded divine acceptance of animal sacrifice as license to take the life of others. 
  (3) One modern-day scholar who is often cited as looking upon vegetarianism with extreme favor is the late Rabbi Abraham Isaac Kook. It is indeed the case that in his writings Rabbi Kook speaks of vegetarianism as an ideal and points to the fact that Adam did not partake of the flesh of animals. In context, however, Rabbi Kook makes those comments in his portrayal of the eschatological era.5<i class="footnote">It should be noted that Rabbi Kook espouses the kabbalistic view that in the eschatological era the so-called lower animals will be endowed with intelligence similar to that of man in the present era. See R. Abraham I. Kook, “<i>Afikim ba-Negev,” Ha-Peles,</i> vol. 3, no. 12 (Elul 5663), p. 718.</i> He regards man's moral state in that period as being akin to that of Adam before his sin and does indeed view renunciation of enjoyment of animal flesh as part of the heightened moral awareness which will be manifest at that time.6<i class="footnote">Yet it must be noted that it is in that era that the Gemara, <i>Baba Batra</i> 75a, declares that God will prepare a feast for the righteous consisting of the flesh of the leviathan. Similarly, <i>Va-Yikra Rabbah</i> 13:3 speaks of a meal consisting of the meat of animals to be served to those who presently observe the restrictions concerning carrion and forms of prohibited meat.</i> But Rabbi Kook is emphatic, nay, vehement, in admonishing that vegetarianism dare not be adopted as a norm of human conduct prior to the advent of the eschatological era. Rabbi Kook advances what are, in effect, four distinct arguments in renunciation of vegetarianism as a goal toward which contemporary man ought to aspire:
  (i) Addressing himself to members of the vegetarian movement, Rabbi Kook remarks almost facetiously that one might surmise that all problems of human welfare have been resolved and the sole remaining area of concern is animal welfare. In effect, his argument is that there ought to be a proper ordering of priorities. Rabbi Kook is quite explicit in stating that enmity between nations and racial discrimination should be of greater moral concern to mankind than the well-being of animals and that only when such matters have been rectified should attention be turned to questions of animal welfare.7<i class="footnote">See <i>Ha-Peles,</i> vol. 3, no. 11 (Ab 5663), p. 658, excerpted in “<i>Ḥazon ha-Ẓimḥonut ve-ha-Shalom</i>,” <i>Mishnat ha-Rav,</i> ed. Abraham Rieger and Yochanan Fried (Jerusalem, 5721), pp. 211-12.</i>
  (ii) Given the present nature of the human condition, maintains Rabbi Kook, it is impossible for man to sublimate his desire for meat. The inevitable result of promoting vegetarianism as a normative standard of human conduct, argues Rabbi Kook, will be that man will violate this norm in seeking self-gratification. Once taking the life of animals is regarded as being equal in abhorrence to taking the life of man, it will transpire, contends Rabbi Kook, that in his pursuit of meat, man will regard cannibalism as no more heinous than the consumption of the flesh of animals.8<i class="footnote">A recent writer presents a strikingly similar argument in decrying attempts to ban animal experimentation. He argues that prohibiting the use of live animals in biomedical research may well result in replacement of animal subjects with humans. See Carl Cohen, “The Case for the Use of Animals in Biomedical Research,” The <i>New England Journal of Medicine,</i> vol. 315, no. 14 (October 2, 1986), p. 868.</i> The result will be, not enhanced respect for the life of animals, but rather debasement of human life."9<i class="footnote">See <i>Ha-Peles</i>, p. 658; <i>Mishnat ha-Rav</i>, p. 212.</i>
  (iii) Man was granted dominion over animals, including the right to take their lives for man's own benefit, in order to impress upon him his spiritual superiority and heightened moral obligations. Were man to accord animals the same rights he accords fellow human beings he would rapidly degenerate to the level of animals in assuming that he is bound by standards of morality no different from those espoused by brute animals.10<i class="footnote">See <i>Ha-Peles,</i> p. 659; <i>Mishnat ha-Rav,</i> pp. 214-16.</i>
  (iv) In an insightful psychological observation, Rabbi Kook remarks that even individuals who are morally degenerate seek to channel their natural moral instincts in some direction. Frequently, they seek to give expression to moral drives by becoming particularly scrupulous with regard to some specific aspect of moral behavior. With almost prescient knowledge of future events, Rabbi Kook argues that, were vegetarianism to become the norm, people might become quite callous with regard to human welfare and human life and express their instinctive moral feelings in an exaggerated concern for animal welfare.11<i class="footnote">See <i>Ha-Peles,</i> p. 659-60; <i>Mishnat ha-Rav,</i> p. 217.A related, but different, concept is the Freudian notion of reaction formation, i.e., when faced with an unacceptable impulse, the ego may try to sidetrack the offensive impulse by transforming its conscious representation into its opposite. Thus an unconscious aggressive or destructive instinct may be masked and hidden from awareness by manifestations of excessive felicity. In terms of this theory, the concern with regard to the development of character traits based upon reaction formation is that a breakthrough of the original impulse is a continuous danger. See Sigmund Freud, “Notes upon a Case of Obsessional Neurosis,” trans. by A. Strachey and J. Strachey, <i>The Standard Edition of The Complete Psychological Works of Sigmund Freud,</i> ed. J. Strachey, X (London, 1955), 249; <i>idem,</i> “Psychoanalytic Notes upon an Autobiographical Account of a Case of Paranoia (Dementia Paranoides),” trans. by A. Strachey and J. Strachey, <i>The Standard Edition of the Complete Psychological Works of Sigmund Freud</i>, XII (London, 1958), 3-82; and <i>idem</i>, “Inhibition, Symptoms and Anxiety,” trans. by A. Strachey and J. Strachey, <i>The Standard Edition of the Complete Works of Sigmund Freud</i>, XX (London, 1959), 75-174.</i> These comments summon to mind the spectacle of Germans watching with equanimity while their Jewish neighbors were dispatched to crematoria and immediately thereafter turning their attention to the welfare of the household pets that had been left behind.12<i class="footnote">Note should also be taken of Hitler’s proclaimed abstinence from meat as well as from coffee, alcohol and sexual activity. In the words of one author, “Hitler thus proved his moral right to free the Germans from their post-war masochism and to convince them that they, in turn, have a right to hate, to torture, to kill.” See Erik Erikson, <i>Childhood and Society</i> (New York, 1963), p. 342. However, reports of Hitler’s alleged vegetarianism are contradicted by a number of other sources. Perhaps the most significant of these is Robert Payne, <i>The Life and Death of Adolf Hitler</i> (London, 1973), p. 346, who relates that Hitler particularly enjoyed Bavarian sausages. Other biographers note that ham, liver and game were included in his diet. See John Toland, <i>Adolf Hitler</i> (New York, 1976), pp. 30, 54, 107 and 256 and Albert Speer, <i>Inside the Third Reich</i> (New York, 1981), p. 89.</i>
  Despite the foregoing, vegetarianism is not rejected by Judaism as a valid lifestyle for at least some individuals. There are, to be sure, individuals who are repulsed by the prospect of consuming the flesh of a living creature. It is not the case that an individual who declines to partake of meat is <i>ipso facto</i> guilty of a violation of the moral code. On the contrary, Scripture states, "and you will say: 'I will eat meat,' because your soul desires to eat meat; with all the desire of your soul may you eat meat" (Deuteronomy 12:20). The implication is that meat may be consumed when there is desire and appetite for it as food, but may be eschewed when there is no desire and, <i>a fortiori,</i> when it is found to be repugnant.13<i class="footnote">See <i>Ha-Peles</i>, p. 657; <i>Mishnat ha-Rav</i>, p. 209.</i> The question is one of perspective. Concern arises only when such conduct is elevated to the level of a moral norm. 
  Ethicists who do not accept the notion of revelation are left with a problem with regard to the nature of ethical propositions. Ethical statements are clearly more than an expression of subjective likes or dislikes since man has no difficulty in distinguishing between the expression of a mere preference and the expression of what he regards as a moral norm. C. L. Stevenson drew the distinction in essentially the following manner: The statement "I like spinach" is a reflection of subjective feeling and nothing more. The proposition "X is good" resolves into two statements, viz., "I approve of X. You do so as well." The proposition "X is good" goes beyond the proposition "I like spinach" in that it is addressed to others and seeks to have them adopt the attitude of the speaker.14<i class="footnote">See Charles L. Stevenson, <i>Ethics and Language</i> (New Haven, 1944), pp. 20-26.</i> An individual's subjective repugnance at the prospect of consuming the flesh of an animal is an aesthetic response rather than a moral reaction. It becomes a moral position only when expressed in advocating the adoption of such norms of conduct by others as well. Jewish tradition does not command carnivorous behavior; it rejects the notion that, at least during the current historical epoch, renunciation of the eating of meat should be posited as a moral ideal for mankind. Thus although "moral vegetarianism" finds no support in Jewish ethics, "aesthetic vegetarianism" is not incompatible with Jewish teaching.15<i class="footnote">By the same token, adoption of a vegetarian life-style because of a sincere conviction that consumption of meat is deleterious to health is not incompatible with Jewish teaching.In a similar manner, some scholars advocate abstemiousness or complete abjuration of meat and wine, health permitting, as a form of self-mortification for the purpose of expiation of sin. See <i>Sedei Ḥemed, Asifat Dinim, ma’arekhet akhilah,</i> sec. 1.</i>
  II. Meat on Yom Tov
  One halakhic consideration standing in the way of adherence to a strict vegetarian regimen is the obligation of <i>simḥat Yom Tov,</i> i.e., rejoicing in the festivals. According to most authorities, throughout the period during which the Temple stood, there was an absolute obligation, at least on the part of males, to partake of the flesh of the festival offering. The Gemara, <i>Pesạhim</i> 109a, records:
  R. Judah ben Beteira declared, "During the time that the Temple existed there was no 'rejoicing' other than with meat as it is said, 'and you shall slaughter peace-offerings and you shall eat there; and you shall rejoice before the Lord your God' (Deuteronomy 27:7)."
  The juxtaposition in a single verse of the commandments concerning the peace-offering and the obligation regarding rejoicing is regarded by the Gemara as establishing the principle that the "rejoicing" in the festival that is explicitly commanded (Deuteronomy 16:14) is that of partaking of the meat of the sacrifice.16<i class="footnote">According to most authorities, the parallel obligation on <i>Shabbat</i> is <i>oneg</i> or “delight” and does not mandate the eating of meat as an absolute obligation. See sources cited by R. Shalom Mordecai Schwadron, <i>Da‘at Torah, Yoreh De‘ah</i> 1:10. <i>Yoreh De’ah</i> 1:10, and <i>Sedei Hemed, Asifat Dinim, ma’arekhet dining,</i> sec. 1.</i>
  Subsequent to the destruction of the Temple and the consequent lapse of the sacrificial order, whether or not there exists an obligation to partake of ordinary meat on the festivals is a matter of some dispute. There would appear to be no basis for assuming that such an obligation exists since the obligation posited by the Gemara explicitly specifies that meat of the festival-offering must be used for this purpose. Indeed the statement of R. Judah ben Beteira concluded with the remark, "but now that the Temple does not exist there is no rejoicing other than with wine, as it is written 'And wine [that] gladdens the heart of man' (Psalms 104:15)." The ostensive implication of this statement is that, subsequent to the destruction of the Temple, the commandment concerning rejoicing on the festival is fulfilled only by drinking wine and not by eating meat. Similarly, the Gemara, <i>Pesaḥim</i> 71a, indicates that, even while the Temple stood, when the sacrificial animal could not be cooked, i.e., on the Sabbath, the obligation of rejoicing was satisfied by donning clean raiment and drinking "old wine" rather than by eating ordinary meat prepared in advance of the Sabbath. This is indeed the position of Ritva, <i>Kiddushin</i> 3b, and of <i>Teshuvot Rashbash,</i> no. 176, who maintain that there no longer exists an obligation to partake of meat on the festivals. Moreover, <i>Tosafot, Yoma</i> 3a, and Rabbenu Nissim, <i>Sukkah</i> 42b, citing the earlier-mentioned statement recorded in <i>Pesaḥim</i> 71a and the statement of the Gemara, <i>Hagigah</i> 8a, which speaks of "all forms of rejoicing," assert that, even during the Temple period, the eating of meat was not an absolute requirement. Rabbenu Nissim characterizes the requirement to eat the meat of the festival offering as a <i>mizvah min ha-muvḥar,</i> i.e., the optimal manner of fulfilling the obligation, but not an absolute requirement. 
  However, Rambam, <i>Sefer ha-Mizvot, mizvot aseh,</i> no. 54, adopts an entirely different position: "Included in His statement 'and you shall rejoice in your festivals' (Deuteronomy 16:14) is that which [the Sages] said to rejoice in them with [various] forms of rejoicing and [because] of this to eat meat, to drink wine, to don new clothes and to distribute fruits and sweets to children and women." Even more explicit is Rambam's statement in <i>Hilkhot Yom Tov</i> 6:18. After codifying the requirement of eating the meat of the festival-offering during the days of the Temple, Rambam turns to an explication of other ramifications of the commandment to rejoice in the festival: "How [is the commandment fulfilled]? Children are given parched corn, nuts and sweets; for women one buys beautiful clothes and ornaments in accordance with one's financial ability; and men eat meat and drink wine, for there is no rejoicing other than with meat and there is no rejoicing other than with wine." This view is also adopted by <i>Tur Shulḥan Arukh, Oraḥ Hayyim</i> 529. 
  <i>Bet Yosef, Oraḥ Hayyim</i> 529, questions the requirement posited by Rambam and <i>Tur</i> regarding eating meat on the festival since the Gemara seems to indicate that, in our day, the commandment is satisfied by merely drinking wine.17<i class="footnote">Cf., R. Moshe Sternbuch, <i>Mo’adim u-Zemanim,</i> I, no. 29, and VII, no. 111, notes 1 and 2.</i> The statement of <i>Hagigah</i> 8a " 'and you shall rejoice in your festivals' (Deuteronomy 16:14): to include all forms of rejoicing," is apparently understood by Rambam as creating a normative obligation beyond that posited in <i>Pesaḥim</i> 109a with regard to partaking of the meat of the festival-offering. Therefore, maintains Rambam, when meat of sacrificial animals is not available, ordinary meat must be eaten for purposes of fulfilling the commandment of rejoicing.18<i class="footnote">Cf., also, <i>Bah, Oraḥ Ḥayyim</i> 529.</i> It is quite evident that the Sages maintained that the consumption of ordinary meat gives rise to joy since the Gemara, <i>Sanhedrin</i> 70a, declares that it is forbidden to eat meat or to drink wine on the day preceding the ninth of Ab.19<i class="footnote">It is certainly arguable that, even according to Rambam, a man who genuinely finds meat repulsive is not required to eat meat on <i>Yom Tov.</i> The obligation to eat meat subsequent to the destruction of the Temple is based upon the derivation “to include all forms of rejoicing” formulated in <i>Ḥagigah</i> 8a. The specific forms of rejoicing are not uniform to all people as evidenced by the fact that women are not obligated to eat meat but to rejoice with new clothes and jewelry. This halakhic provision reflects the judgment of the Sages that women do not derive the same pleasure from eating meat as is experienced by men. A male who does not derive pleasure from eating meat, arguably, must seek other forms of rejoicing. Cf. R. Moshe ha-Levi Steinberg, <i>Ḥukkat ha-Ger</i> (Jerusalem, 5741), <i>Kuntres ha-Teshuvot,</i> no. 1.</i> This prohibition was later extended to prohibit the eating of meat beginning with the first day of Ab. However, if all appropriate forms of rejoicing are mandatory, why does the Gemara, <i>Pesaḥim</i> 109a, speak of wine as obligatory only in our day, but not when the meat of the festival offerings was eaten? <i>Yam shel Shelomoh, Beizah</i> 2:5, suggests that, when the Temple stood, rejoicing was possible without the inebriating effect of wine; only in exile is wine necessary to dispel melancholy and to generate joyousness in order to restore faith that God has not forsaken us. <i>Yam shel Shelomoh</i> fails to explain why <i>Pesaḥim</i> 71a speaks of an obligation with regard to drinking "old wine" prior to the destruction of the Temple. 
  Among latter-day authorities, <i>Magen Avraham, Oraḥ Hayyim</i> 696:15, states that, subsequent to the destruction of the Temple, there is no obligation to eat meat on festivals. This statement is, however, contradicted by another comment of <i>Magen Avraham</i> himself. <i>Magen Avraham, Oraḥ Hayyim</i> 249:6, cites a similar statement in the name of <i>Levush</i> declaring the eating of meat on the festivals not to be obligatory in our day and, pointing to <i>Sanhedrin</i> 70a, declares <i>Levush</i> to be in error. In yet another comment, <i>Magen Avraham, Oraḥ Hayyim</i> 529:3, declares it to be a "<i>mizvah</i>" to eat meat on <i>Yom Tov</i>.20<i class="footnote">One latter-day authority, R. Shlomoh Haas, <i>Kerem Shlomoh, Yoreh De’ah</i> 1:1, declares the obligation to eat meat on <i>Yom Tov</i> to be rabbinic in nature. A contradictory statement attributed to that author by some contemporary writers is patently incorrect. See Richard Schwartz, <i>Judaism and Vegetarianism</i> (Pompeno Beach, 1982); p. 148, note 3. This source is, in turn, cited by Elijah Judah Schochet, <i>Animal Life in Jewish Tradition</i> (New York, 1984), p. 342, note 12. The similarly cited <i>Yakhel Shlomoh, Oraḥ Ḥayyim</i> 59:2, attributed to R. Shlomoh Haas appears to be a non-existent work. The reference is presumably to <i>Kerem Shlomoh, Oraḥ Ḥayyim</i> 529:2, which speaks only of “other forms of rejoicing” in lieu of partaking of the meat of sacrificial animals.</i>
  One ramification of the view that the eating of meat on the festivals is an absolute requirement is found in <i>Teshuvot Havot Ya'ir,</i> no. 178. The sole ritual slaughterer in a small village fell ill prior to Passover with the result that the townspeople were faced with the prospect of being without meat for the holiday. One of the members of the community was proficient in the laws of slaughtering but did not possess formal <i>kabbalah,</i> i.e., rabbinic license to serve as a ritual slaughterer. <i>Havot Ya'ir</i> ruled that, were there no question with regard to the actual <i>kashrut</i> of the slaughtered animal, the requirement for <i>kabbalah</i> must be waived in order to make it possible to fulfill the commandment of rejoicing in the festival. R. Shalom Mordecai Schwadron, <i>Da'at Torah, Yoreh De'ah</i> 1:10, contested this ruling on the grounds that, according to many authorities, subsequent to the destruction of the Temple, the eating of meat on <i>Yom Tov</i> is not an absolute requirement. This latter view is also the position of <i>Shenei Luḥot ha-Berit,</i> p. 74b, cited by <i>Pitḥei Teshuvah, Yoreh De'ah</i> 18:9. 
  Another matter that is directly contingent upon the resolution of this question is addressed by R. Moshe ha-Levi Steinberg, <i>Hukkat ha-Ger, Kuntres ha-Teshuvot,</i> no 1. The question concerns the conversion of a proselyte who is a vegetarian and hence will not assume the obligation of eating meat on <i>Yom Tov.</i> If such consumption of meat is an absolute obligation, the conversion is invalid. This conclusion follows from the principle formulated in <i>Bekhorot</i> 30b and the <i>Mekhilta, Parshat Kedoshim</i> 19:34, which provides that the candidate's failure to accept any provision of Jewish law invalidates a conversion.21<i class="footnote">Even were such conversions valid, assistance in such a conversion may yet involve a transgression of <i>lifnei iver.</i> R. Shlomoh Zalman Auerbach, <i>Minḥat Shlomoh,</i> no. 35, sec. 3, questions the validity of conversions in which it is known that the proselyte does not intend to observe the commandments of the Torah and adds that were such conversions to be regarded as valid, “all who assist” in such procedures would be guilty of “placing a stumbling block before the blind” since, were the proselyte not to have become a Jew, such actions would be entirely permissible.</i> If, on the other hand, the eating of meat on <i>Yom Tov</i> is not a normative requirement, the conversion is entirely valid. 
  Regardless of whether or not there exists a normative obligation to eat meat on <i>Yom Tov,</i> it is certain that the Sages encouraged and urged such practice. Even practices which are not mandated by the obligation concerning rejoicing nevertheless constitute a fulfillment of the commandment when they result in feelings of gladness and joy.22<i class="footnote">Cf., <i>Sha’agat Aryeh,</i> no. 65.*Abstinence from the flesh of animals is also the subject of scattered comments in kabbalistic writings. R. Moses Cordovero, <i>Shi’ur Komah</i> (Warsaw, 5643), p. 84b, advises that a person seeking spiritual perfection should “distance” himself from eating meat. Accepting the principle of transmigration of souls, R. Moses Cordovero expresses the concern that the soul of a wicked man may be present in a slaughtered animal and exert a deleterious influence over the person who consumes its flesh. In a footnote appended to that text, the editor remarks that, according to this thesis, one who is imbued with the Divine Spirit, and hence is capable of determining that no such soul is incarnated in the animal he is about to eat, has no reason to refrain from eating meat.A similar position is attributed to <i>Reishit Ḥokhmah</i> by <i>Sedei Hemed, Asifat Dinim, ma’arekhet akhilah,</i> sec. 1. <i>Reishit Ḥokhmah,</i> p. 129b, is cited as stating that one should not eat the flesh of any living creature. The reference appears to be to the Amsterdam, 5668 edition of <i>Reishit Ḥokhmah.</i> However, an examination of pp. 129b-130a of that edition reveals that, rather than advising total abstinence from the flesh of living creatures, <i>Reishit Ḥokhmah</i> offers counsel with regard to the time of day most suitable for partaking of meat.Opposition to consumption of meat appears to be a narrowly held view even within the kabbalistic tradition. A number of kabbalistic sources indicate that, quite to the contrary, the doctrine of transmigration yields a positive view regarding the eating of meat. According to these sources, transmigrated souls present in the flesh of animals may secure their release only when the meat of the animal has been consumed by man. The <i>miẓvot</i> performed in preparation and partaking of the meat and the blessings pronounced upon its consumption serve to “perfect” the transmigrated soul so that it may be released to enjoy eternal reward. See, for example <i>Shevet Mussar,</i> chap. 36 and R. Zevi Elimelech of Dinov, <i>Bnei Yissaskhar, Ma’amarei ha-Shabbatot, ma’amar</i> 10, sec. 4, and <i>Sivan, ma’amar</i> 5, sec. 18. Righteous individuals who must undergo transmigration in expiation of minor infractions are incarnated in fish in order to spare them the pain of slaughter. Scripture speaks of fish as “gathered” rather than as slaughtered and similarly speaks of the righteous as being “gathered” to their forebears rather than as experiencing the throes of death. See also R. Moshe Teitelbaum, <i>Yismaḥ Mosheh, Parshat Va-Yeira, s.v. va-yikaḥ ḥemah ve-ḥalav.</i> R. Yechiel Michal ha-Levi Epstein, <i>Kiẓur Shelah</i> (Jerusalem, 5720), p. 161, advises that particular effort be made to eat fish on <i>Shabbat</i> so that the souls of the righteous which may be incarnated in the fish be “perfected” through consumption of the fish by a righteous and observant Jew.R. Menachem Mendel Schneerson is quoted as having expressed opposition to vegetarians, at least tentatively, on kabbalistic grounds. He is reported to have voiced the concern that refraining from consumption of meat will prevent the “elevation of sparks,” a goal that is central to the kabbalists’ view of man’s purpose in life. See the comments of R. Shear-Yashuv Cohen, published as the introduction to R. Menachem Slae, <i>Min ha-Ḥai</i> (Jerusalem, 5748).</i> In forbidding the eating of meat on the day preceding the ninth of Av because consumption of meat gives rise to joy, the Gemara forbids only the eating of types of meat comparable to that of sacrificial animals. Thus, fowl and preserved meats are not included in this prohibition. It then follows that, according to Rambam who requires the eating of meat on <i>Yom Tov,</i> it is the meat of animals rather than of fowl which must be eaten. Nevertheless, the Gemara, <i>Beizah</i> 10b, explains that doves slaughtered on <i>Yom Tov</i> must be designated for that purpose in advance, lest, if the doves have not been previously examined, they may be found on <i>Yom Tov</i> to be insufficiently fattened, with the result that a person relying upon them for the <i>Yom Tov</i> meal will be lacking in "the joy of the festival." Since, even according to Rambam, the obligatory commandment of rejoicing cannot be fulfilled by eating doves, it is clear that, even absent a normative obligation, the Sages sought to promote the eating of tasty meat on <i>Yom Tov</i> because the consumption of such food enhances the joyfulness and festivity of the day. Thus, even if there is no normative obligation to partake of meat on <i>Yom Tov,</i> abstaining from meat on <i>Yom Tov</i> because of considerations of vegetarianism would not have been looked upon with favor by the Sages. 
  
  Chapter XI Preemptive War in Jewish Law
  
  <i>All that is recorded in the Torah is written for the sake of peace; and although warfare is recorded in the Torah, even warfare is recorded for the sake of peace.</i>
  TANHUMA, ẒAV 3
  I
  The considerations of Jewish law and eithics as they apply to war in general, and to the Lebanese conflict of the summer of 1982 in particular, are complex. Halakhah does recognize a category of war "to deliver Israel from the enemy." Such war is not only legitimate but mandatory. Jewish law also recognizes as a category of permissible war, wars undertaken in order "to diminish the heathens so that they shall not march against them." And, of course, Halakhah recognizes the legitimacy of self-defense which need not be justified in terms of halakhically applicable categories of war. Any discussion of the Halakhah as it pertains to preemptive war must, of necessity, begin with an analysis of <i>Sotah</i> 44b, and of the exceedingly complex rabbinic commentaries thereto, as well as of the ruling of Rambam, <i>Hilkhot Melakhim</i> 5:1, which, as will be seen, lends itself to a variety of possible interpretations. 
  Jewish law recognizes two distinct types of war: <i>milḥemet mizvah,</i> i.e., war commanded by the Torah and <i>milḥemet reshut,</i> i.e., war that is not commanded but that is permitted and hence is "discretionary." The primary locus of the talmudic formulation of these two categories of war is the final Mishnah of the eighth chapter of <i>Sotah</i> and the accompanying discussion recorded in the Talmud, <i>Sotah</i> 44b. The Mishnah presents an elucidation of the scriptural verses that provide for a number of exemptions from military service. Deuteronomy 20:5-7 states:
  And the officers shall speak unto the people, saying: who is the man who has built a new house and has not begun living in it? let him go and return to his house, lest he die in the battle and another man begin living in it. And who is the man who has planted a vineyard and has not redeemed [its fruit in the fourth year]? let him go and return to his house, lest he die in the battle and another man redeem it. And who is the man who has betrothed a wife and has not taken her? let him go and return to his house, lest he die in the battle and another man take her.1<i class="footnote">The immediately following verse, Deuteronomy 20:8, provides yet another exemption: “And the officers shall speak further unto the people and they shall say, who is the man who is fearful and faint-hearted? let him go and return to his house, and let him not make the heart of his brethren faint as [is] his heart.” This exclusion, however, applies with regard to <i>milḥamot miẓvah</i> as well as to <i>milḥamot reshut</i>; see Radbaz, <i>Hilkhot Melakhim</i> 7:1, and commentaries <i>ad loc.</i></i>
  The Mishnah concludes with the statement:
  To what does the foregoing apply? To discretionary wars, but in wars commanded by the Torah (<i>milḥamot mizvah</i>) all go forth, even a bridegroom from his chamber and a bride from her canopy. R. Judah says: To what does the foregoing apply? To wars commanded by the Torah (<i>milḥamot mizvah</i>), but in obligatory wars (<i>milḥamot ḥovah</i>) all go forth, even a bridegroom from his chamber and a bride from her canopy.2<i class="footnote">Regarding the apparent provision for conscription of women in obligatory wars see Radbaz, <i>Hilkhot Melakhim</i> 74:4, but cf., Rambam, <i>Sefer ha-Miẓvot,</i> introduction, concluding section of <i>shoresh</i> 14.</i>
  The Gemara, as understood both by Rashi and by Rambam in his <i>Commentary on the Mishnah,</i> establishes that no controversy exists between R. Judah and the Sages with regard to the definition and scope of these basic categories. Insofar as the regulations specifically addressed by the Mishnah are concerned, the terms <i>"ḥovah"</i> ("obligatory") and <i>"mizvah"</i> ("commanded") are to all intents and purposes synonymous in connotation. All agree that wars waged by the House of David for the purpose of territorial expansion were discretionary and hence were governed by the provisions of Deuteronomy 20:5-7; similarly, all agree that the wars waged by Joshua for the conquest of the land of Canaan were obligatory and hence were not governed by the provisions of Deuteronomy 20. Nevertheless, the Sages carefully employ the term "commanded" (<i>mizvah</i>) in speaking of the latter while R. Judah uses the term "obligatory" (<i>ḥovah</i>) with equal precision, even though both are in total agreement with regard to the specific wars excluded from the provisions of Deuteronomy 20. The Gemara introduces a new category of war, viz., wars "to diminish the heathens so that they shall not march against them," and posits a peripheral dispute between the Sages and R. Judah in order to explain their respective choice of nomenclature. The Gemara assumes that both the Sages and R. Judah agree that the provisions of Deuteronomy 20 apply not only to the wars of the House of David but also to preemptive strikes "to diminish the heathens so that they shall not march against them. "The Sages regard such wars as "discretionary" because they are not undertaken in fulfillment of a biblical commandment and because such preemptive wars are conducted in the absence of any imminent danger. Accordingly, the Sages employ the terms "commanded" (<i>mizvah</i>) and "discretionary (<i>reshut</i>) as antonyms. R. Judah, although he concedes that for statutory purposes such preemptive wars are included among the discretionary wars to which the provisions of Deuteronomy 20 apply, refuses to term such wars "discretionary;" R. Judah, despite the absence of an explicit biblical injunction, views the waging of such wars as constituting a <i>mizvah.</i> According to R. Judah, preventive war, although not obligatory, constitutes the fulfillment of a <i>mizvah</i> when necessary for purposes of security. Hence R. Judah finds it necessary to seek a different term to describe wars that are explicitly commanded by Scripture, e.g., the wars of Joshua for the conquest of Canaan. The latter are termed "mandatory" (<i>ḥovah</i>) by R. Judah. His use of the appellation <i>"mizvah"</i> in reference to preventive war notwithstanding, R. Judah concedes that only wars specifically mandated by Scripture are excluded from the provisions of Deuteronomy 20. 
  The Gemara seeks to discover a concrete halakhic application, as distinct from a purely semantic difference, of the issue that divides the Sages and R. Judah. A practical difference arising from their controversy is found by the Gemara in the application of a general principle that provides that a person engaged in performance of a <i>mizvah</i> is exempt from the fulfillment of other commandments. R. Judah considers the waging of preemptive war to constitute fulfillment of a <i>mizvah</i>; hence, according to R. Judah, combatants are exempt from fulfilling other commandments while engaged in military duties associated with preemptive war. The Sages regard such incursions as discretionary in nature and hence regard soldiers engaged in such battles as being fully obligated with regard to the fulfillment of other commandments.3<i class="footnote">The text of the Gemara reads as follows:The Gemara does not tell us explicitly whether it is R. Judah or the Sages who consider war “to diminish the heathens” to constitute a commanded war. Rashi and Rambam, in their respective commentaries, explain that R. Judah deems such war to be commanded while the Sages consider such war to be discretionary. (The interpretation of these authorities have been followed in the parenthetical interpretations within the translation above.) Indeed, Rashi’s interpretation is taken directly from the words of R. Yoḥanan: [A war which is designated] as permitted by the Sages is identical with [war which is designated as] commanded by R. Judah, i.e., there is a category of war which is deemed to be “commanded” by R. Judah while, according to the Sages, the identical war is merely “discretionary.” The war in question is then identified by Rava as war “to diminish the heathens so that they shall not march against them.” Thus there is no dispute between Rava and R. Yoḥanan; Rava merely amplifies the statement of R. Yoḥanan. According to both, the dispute between the Sages and R. Judah is with regard to whether participants in a war “to diminish the heathens” are exempt from fulfillment of other precepts. All are in agreement that the provisions of Deuteronomy 20:5-8 that apply to discretionary wars apply as well to war undertaken “to diminish the heathens.”This interpretation is contradicted by Me’iri in his commentary on <i>Sotah</i> 43a. Me’iri declares that it is the <i>Sages</i> who deem such war to be commanded while <i>R. Judah</i> regards it as merely “permitted.” Of course, this understanding appears to be at variance with the statement recorded by the Gemara in the name of R. Yoḥanan.R. Eliezer Waldenberg, <i>Hilkhot Medinah,</i> II, <i>sha’ar</i> 4, chapter 1, secs. 2-3, explains that Me’iri must have posited a dispute between R. Yoḥanan and Rava: R. Yoḥanan declares the sole controversy between the Sages and R. Judah to be entirely a matter of nomenclature having no practical application; Rava contradicts this analysis and, referring directly to the Mishnah, declares that the Sages posit a “commanded” war that is governed by the selfsame regulation that applies to obligatory wars, viz., the nonexclusion from military service of the individuals described in Deuteronomy 20. R. Judah, on the other hand, equates such war with “discretionary” wars and maintains that those persons described in Deuteronomy 20 are conscripted only in obligatory wars but not for service in wars “to diminish the heathens.” The phraseology employed by Rava, “The difference is with regard to [application of the principle that] one who is engaged in performance of a commandment is exempt from the performance of [another] commandment” is understood by Me’iri as referring to exemption from an obligation associated with warfare itself, i.e., the obligation devolving upon those described in Deuteronomy 20 to recuse themselves from battle. That obligation is variously regarded as based upon the words expressed repeatedly in Deuteronomy 20 “let him go and return to his house” or the verse “he shall be free for his house one year” (Deuteronomy 24:5). See Rashi, Deuteronomy 20:7, <i>Sotah</i> 43a, and <i>Rambam, Hilkhot Melakhim</i> 7:10. The Sages regard participation in war “to diminish the heathens” as a <i>miẓvah</i> and hence incumbent upon even those enumerated in Deuteronomy 20. Since participation in a war “to diminish the heathens” constitutes a <i>miẓvah,</i> such participation serves to exempt those enumerated in Deuteronomy 20 from the commandment to remove themselves from the battle arena.[The Tosefta, <i>Sotah</i> 7:15, as apparently understood by Rashi, Deuteronomy 20:7, and Rambam, <i>Hilkhot Melakhim</i> 7:11, maintains that those exempt from conscription in <i>milḥamot reshut</i> may not serve even on a voluntary basis. See also the discussion in <i>Sotah</i> 44a concerning a prohibition against a bridegroom’s participation in battle. Rabbi Waldenberg’s analysis of Me’iri is apparently predicated upon this premise. One difficulty with this explanation lies in the fact that Rambam, on the basis of <i>Sotah</i> 44a, maintains that military service by such individuals involves, not a simple violation of a positive commandment, but transgression of two negative commandments, viz., “When a man takes a wife he shall not go out in the army, nor shall he be charged with any matter” (Deuteronomy 24:5). The principle that one engaged in fulfillment of a <i>miẓvah</i> is exempt from fulfillment of other precepts applies only to positive commandments but does not permit violation of negative precepts. (The usual explanation of why the exclusions from military service found in Deuteronomy 20 do not apply to commanded or obligatory wars is based upon rabbinic exegesis of the prefatory phrase in that section. <i>“Ki teẓei la-milḥamah</i>” is understood as meaning “<i>If</i> you go forth to war” rather than “<i>When</i> you go forth to war.” The reference must then be to discretionary war since commanded war cannot be described in hypothetical terms.)See also <i>Sefer ha-Ḥinnukh,</i> no. 581, who apparently maintains that the exclusion of those enumerated in Deuteronomy 20 means simply that they cannot be compelled to perform military service but does not forbid voluntary enlistment. If so, the phrase “let him go and return to his house” cannot be understood as a <i>miẓvah.</i> However, Rava’s comment may be understood in an alternative manner. It may be understood to mean that the dispute between the Sages and R. Judah is <i>also</i> with regard to application of the principle that one who is engaged in fulfillment of a commandment is exempt from the fulfillment of another commandment. It would be regarded as self-understood that exemption or non-exemption from participation in a war “to diminish the heathens” flows from its categorization as <i>miẓvah</i> or <i>reshut.</i> See <i>Knesset ha-Gedolah, Hilkhot Melakhim,</i> chapter 5, appended to <i>Knesset ha-Gedolah,</i> vol. IV.]Rabbi Waldenberg finds support for Me’iri’s interpretation in the parallel discussion found in the Palestinian Talmud that reports that R. Yoḥanan declared that the dispute between the Sages and R. Judah is entirely one of nomenclature, while R. Ḥisda declared that there is a substantive dispute between them. The identical controversy, according to this analysis, is posited by the Babylonian Talmud as a dispute between R. Yoḥanan and Rava.This analysis of Me’iri’s comments yields a conclusion of crucial halakhic import. In this controversy the normative halakhah is decided in accordance with the majority position, i.e., that of the Sages. According to the interpretation of Me’iri, the Sages maintain that war to diminish the heathens is a <i>milḥemet miẓvah</i> rather than a <i>milḥemet reshut.</i>It should, however, be noted that there is a distinct possibility that the text of the Me’iri’s commentary contains a scribal error and that Me’iri actually wrote that war “to diminish the heathens” is a <i>milḥemet miẓvah</i> according to R. Judah but a <i>milḥemet reshut</i> for the Sages. In citing the text of Me’iri’s remarks, R. Shlomoh Yosef Zevin, <i>Le-Or ha-Halakhah</i> (Tel Aviv, 5717), p. 13, makes precisely this correction without further comment.<i>Knesset ha-Gedolah,</i> IV, <i>Hilkhot Melakhim,</i> chapter 5, similarly explains that there is a dispute between R. Yoḥanan and Rava. According to <i>Knesset ha-Gedolah,</i> Rava declares that both the Sages and R. Judah maintain that war “to diminish the heathens” is a <i>milḥemet miẓvah</i> in the sense that the exemptions recorded in Deuteronomy 20 do <i>not</i> apply in the conduct of such warfare. The sole dispute is whether combatants engaged in such warfare are exempt from fulfilling other precepts. According to the Sages they are exempt while according to R. Judah they are not exempt. For that reason R. Judah terms such war <i>milḥemet reshut,</i> i.e., participants are not viewed as engaged in an activity exempting them from fulfillment of other precepts. It is the view of <i>Knesset ha-Gedolah</i> that Rambam rules in accordance with the opinion of the Sages and includes preemptive war in the category of war “to deliver Israel from an enemy” which is classified by Rambam as a <i>milḥemet miẓvah.</i> This interpretation of Rambam is, however, contradicted by Rambam’s own comments in his <i>Commentary on the Mishnah, Sotah,</i> 8:7; see below, note 14.</i>
  The question of whether a preemptive war is included in the category of <i>milḥemet mizvah</i> or <i>milḥemet reshut</i> is crucial with regard to yet another aspect of Halakhah. The Mishnah, <i>Sanhedrin</i> 2a, stipulates that a discretionary war may be undertaken only upon the acquiescence of the Great Sanhedrin composed of seventy-one members. A subsequent Mishnah, <i>Sanhedrin</i> 20a, implies that a discretionary war may be undertaken only by a monarch. Thus, a discretionary war cannot be justified unless undertaken by the king4<i class="footnote">Ramban, addenda to Rambam’s <i>Sefer ha-Miẓvot, miẓvot aseh,</i> no. 4, states that the requirement that war be undertaken only by a king must be understood as including not only a monarch but any sovereign authority. Thus he states that war may be undertaken by “a king, a judge or whosoever exercises jurisdiction over the people.” For sources discussing Rambam’s possible disagreement regarding this point, see <i>Contemporary Halakhic Problems,</i> II, 207, note 27.</i> with the permission of the Great Sanhedrin.5<i class="footnote">Rabbi Judah Gershuni, <i>Torah she-be-‘al Peh,</i> XIII (5731), 150f., advances the thesis that approval of the Sanhedrin is required only if the monarch finds it necessary to compel the populace to go to war and to conscript soldiers against their will, but that when the nation voluntarily agrees to go to battle approval of the Sanhedrin is not required. A similar view is advanced by <i>Einayim la-Mishpat, Sanhedrin</i> 16a. This view is supported by the comments of Me’iri, <i>Sanhedrin</i> 16a, who remarks that approval of the Sanhedrin is required in order to compel the populace to go out to battle. See also R. Abraham I. Kook, <i>Mishpat Kohen,</i> no. 145, and R. Saul Israeli, <i>Amud ha-Yemini,</i> no. 14 and no. 16, chap. 5, secs. 6-7. Cf., <i>Amud ha-Yemini,</i> no. 16, chap. 5, sec. 24.</i> Moreover, in the context of a discussion of discretionary war, the Gemara, <i>Berakhot</i> 3b and <i>Sanhedrin</i> 16a, declares that the king may not undertake military action other than upon the approval of the <i>urim ve-tumim.6<i class="footnote">Upon the twelve precious stones of the <i>urim ve-tumim</i> were engraved the names of the twelve tribes of Israel. In response to a specific query, various letters became illuminated. By means of the Divine Spirit the High Priest was enabled to combine the letters in order to discern the intended response.Since no discretionary war could be undertaken other than upon approval of the <i>urim ve-tumim,</i> even discretionary war must be deemed to be undertaken with explicit divine approval and, conversely, no war could be undertaken other than with such divine sanction. Thus Abigail addresses King David and declares, “… for the Lord will certainly make a sure house for my lord because my lord fights the battles of the Lord” (I Samuel 25:28). Rambam, <i>Hilkhot Melakhim</i> 7:15, cites this verse and applies it to discretionary wars in stating:Moreover, many ritual prohibitions are suspended even when discretionary wars are fought. Thus, once a discretionary war has been undertaken, it is permissible to wage such war on the Sabbath and combatants are permitted to partake of forbidden foods. The woman of “beautiful countenance” described in Deuteronomy 20:11 is permitted only to combatants engaged in discretionary wars but not to those engaged in commanded wars. It is thus clearly evident that even discretionary wars, when undertaken in accordance with the prescriptions of Halakhah, must be understood as undertaken by virtue of divine mandate. See <i>Hilkhot Medinah,</i> II, <i>sha’ar</i> 4, chapter 1, sec. 6. Indeed, <i>Mekom Shmu’el,</i> no. 8, suggests that the term “<i>reshut</i>” should be understood not as “permitted” or “discretionary” but as “licensed” or “sanctioned” in the sense that such war requires <i>reshut Bet Din,</i> i.e., sanction of the Sanhedrin, as distinct from wars that are obligatory by reason of explicit scriptural mandate.</i></i> Although in <i>Hilkhot Melakhim</i> Rambam fails to mention consultation of the <i>urim ve-tumim</i> as a necessary precondition,7<i class="footnote">Cf., R. Yechiel Michael Epstein, <i>Arukh ha-Shulḥan he-Atid, Hilkhot Mela-khim</i> 74:7, who suggests that, even with regard to discretionary wars, consultation of the <i>urim ve-tumim,</i> although biblically mandated, is “perhaps” not a necessary condition of war. Although consultation of the <i>urim ve-tumim</i> constitutes a <i>miẓvah</i> and is required by virtue of biblical command, failure to engage in prior consultation, contends <i>Arukh ha-Shulḥan he-Atid,</i> does not affect the legitimacy of the war itself. See also, <i>Le-Or ha-Halakhah,</i> p. 12, and cf., <i>Einayim la-Mishpat, Sanhedrin</i> 16a.</i> nevertheless, in the introduction to his <i>Sefer ha-Mizvot, shoresh</i> 14, Rambam does state that a High Priest is required for the undertaking of war; i.e., the king and the Sanhedrin may not undertake military action other than upon acquiescence of the <i>urim ve-tumim</i> which is attached to the breast-plate worn by the High Priest. Hence, absent a High Priest8<i class="footnote">See, however, Rambam’s reference to the function of the <i>urim ve-tumim</i> in <i>Hilkhot Klei ha-Mikdash</i> 10:11.</i> who can consult the <i>urim ve-tumim,</i> offensive war in conformity with the stipulations of Jewish law is impossible. Ramban, in his addenda to Rambam's <i>Sefer ha-Mizvot, mizvot lo ta'aseh,</i> no. 17, declares that the requirement for consultation and approval of the <i>urim ve-tumim</i> is not limited to discretionary wars but applies with equal force to obligatory wars as well.9<i class="footnote">Rashi, in his commentary on the verse “and he shall stand before Eleazar the priest, who shall inquire for him by the decree of the Urim before the Lord” (Numbers 27:21), remarks that “even Joshua” was required to consult the <i>urim ve-tumim</i> “when he had need to go out to battle.” Since the wars of Joshua were all commanded wars, i.e., for the conquest of the territory inhabited by the Seven Nations, it must be inferred that Rashi agrees with Rambam in maintaining that consultation of the <i>urim ve-tumim</i> was necessary even in conjunction with commanded wars. See R. Judah Gershuni, <i>Mishpat ha-Melukhah, Hilkhot Melak-him</i> 5:2.For a discussion of whether war against Amalek requires consultation of the <i>urim ve-tumim,</i> see R. Judah Gershuni, <i>Torah she-be-‘al Peh,</i> XIII (5731); cf., <i>Contemporary Halakhic Problems,</i> I, 16-18.</i>
  Since both the Sages and R. Judah agree that war "to diminish the heathens" is discretionary rather than mandatory, it follows that preemptive war may be waged only by a sovereign with the approval of the Sanhedrin and permission of the <i>urim ve-tumim.</i> Rambam, <i>Sefer ha-Mizvot, shoresh</i> 14, expressly declares that "war and conquest of cities may not be other than by a king and upon the counsel of the Sanhedrin and a High Priest" and hence since <i>Mizvot</i> associated with a "… king or a discretionary war … are not incumbent other than during the existence of the Temple" it is self-understood that such <i>Mizvot</i> cannot be fulfilled in our day. Thus, it would appear that, in our day, preemptive war "to diminish the heathens" cannot be sanctioned by Jewish law since, at present, there exists neither Sanhedrin nor <i>urim ve-tumim</i> to grant prior approval. 
  II
  The concept of preemptive war and the situations in which such military action may be undertaken, even within the context of a <i>milḥemet reshut,</i> is the subject of considerable controversy among rabbinic commentators. A number of conflicting views center around the correct understanding of Rambam's formulation of this concept. 
  It might be anticipated that, in deciding between the conflicting views of R. Judah and the Sages, the normative halakhic ruling would be in accordance with the majority opinion, i.e., in accordance with the opinion of the Sages. Therefore, Rambam's formulation of the Halakhah is somewhat puzzling. In his <i>Mishneh Torah, Hilkhot Melakhim</i> 5:1, Rambam rules:
  The king may first wage only a <i>milḥemet mizvah.</i> What is a <i>milḥemet mizvah?</i> It is the war against the Seven Nations,10<i class="footnote">The obligation to annihilate the Seven Nations assumes two distinct forms. A communal obligation to engage in war against those nations is here posited by Rambam, <i>Hilkhot Melakhim</i> 5:1, and by <i>Sefer ha-Ḥinnukh,</i> no. 425. A personal obligation to eliminate the members of those nations is formulated by Rambam, <i>Hilkhot Melakhim</i> 5:4, and by <i>Sefer ha-Ḥinnukh,</i> no. 425.Various aspects of the commandment may be explained on the basis of this two-fold formulation. <i>Sefer ha-Ḥinnukh</i> declares that the obligation to annihilate the Seven Nations is incumbent upon both males and females equally and also expresses the view that the obligation is suspended when fulfillment would entail self-endangerment. <i>Minḥat Ḥinnukh</i> notes two apparent contradictions: (1) <i>Sefer ha-Ḥinnukh,</i> no. 525 and no. 603, in contradistinction to Rambam, <i>Sefer ha-Miẓvot,</i> introduction, <i>shoresh</i> 14, rules that women are exempt from participation in all wars including <i>milḥamot miẓvah.</i> (2) The waging of war, almost by definition, entails self-endangerment. Hence a commandment to wage war must be understood as explicitly requiring the placing of one’s life at risk in fulfilling that obligation.These problems are resolved if it is understood that the obligation is two-fold in nature: a communal obligation to wage war against the Seven Nations and a personal obligation to eliminate the members of those nations. Although women are exempt from conscription for purposes of engaging in communal warfare, they are required to eliminate members of the Seven Nations by virtue of their personal obligation. Conversely, in the absence of a state of war declared by the sovereign, no individual is obligated to endanger his life in an attempt to discharge his personal obligations with regard to eradication of the Seven Nations. See R. Moshe Sternbuch, <i>Mo’adim u-Zemanim,</i> II, no. 164; R. Judah Gershuni, <i>Mishpat ha-Melukhah, Hilkhot Melakhim</i> 5:2; and R. Shlomoh Goren, <i>Torat ha-Mo‘adim,</i> (Tel Aviv, 5714), pp. 180f.One significant difficulty remains. The biblical source of the commandment to annihilate the Seven Nations is the injunction “you shall utterly destroy them” (Deuteronomy 7:2 and Deuteronomy 20:7). This biblical passage might well be interpreted as establishing either a communal or a personal obligation; it is difficult to deduce a two-fold obligation from a single phrase.In order to resolve this difficulty, it should first be noted that in delineating a <i>milḥemet miẓvah</i> the Gemara, <i>Sotah</i> 44b, speaks of the “wars of Joshua to conquer,” i.e., war for the conquest of the land of Canaan. Rambam, <i>Hilkhot Melakhim</i> 5:1, speaks, not of conquest of the land of Canaan, but of war against the Seven Nations. Of course, conquest of the land of Canaan involved war against the indigenous inhabitants, viz., the Seven Nations. However, Rambam’s substitution of his own terminology for that of the Gemara is significant in that it places negative emphasis upon such war as serving to destroy the Seven Nations rather than upon its positive aspect as a war for the conquest of the Land of Israel.Conquest of the land of Canaan as an end in itself, as well as settlement in the Land of Israel, is deemed by Ramban to be mandated by the verse “And you shall drive out the inhabitants of the land and dwell therein” (Numbers 33:53). See Ramban, <i>Commentary on the Bible, ad loc.,</i> and <i>idem, Sefer ha-Miẓvot, Miẓvot aseh,</i> addenda, no. 4. Rambam, as is well known, fails to record any positive commandment predicated upon that verse. Hence it may be assumed that, for Rambam, neither settlement in the land of Israel nor conquest of the territory so designated constitutes a <i>miẓvah.</i> (See, however, <i>Megillat Esther, Sefer ha-Miẓvot, Miẓvot aseh,</i> addenda, no. 4, who asserts that Rambam understands this passage as establishing a commandment to conquer the land, but that this commandment was binding only upon the generation of the original conquest rather than for posterity.) Indeed, Rashi understands the verse as constituting only prudent counsel, viz., in order to assure permanence of settlement it is necessary first to drive out the inhabitants. See <i>Contemporary Halakhic Problems</i>, II, 193-99. It may be suggested that Rambam views the first clause of this passage as a commandment or, more precisely, as an amplification of the commandment recorded elsewhere, viz., “you shall utterly destroy them.” The latter passage establishes a personal obligation with regard to annihilation of the Seven Nations. That obligation is quite independent of considerations of settlement. <i>Sefer ha-Ḥinnukh</i> explains that eradication of paganism is the rationale underlying the commandment “you shall utterly destroy them.” Indeed, the commandment is presented in precisely that context both in Deuteronomy 7 and in Deuteronomy 20. “You shall drive out the inhabitants of the land and dwell therein” may well have been understood by Rambam as a reiteration of the commandment recorded in Deuteronomy 7:2 and Deuteronomy 20:7 and hence this injuction is not enumerated by Rambam as a new commandment. However, in Numbers 33:53 an entirely different <i>telos</i> is presented, viz., “and dwell therein:” Annihilation of the Seven Nations makes permanence of settlement a greater likelihood. Since, according to Rambam, residence in the Land of Israel is not a personal obligation, establishment of a permanent settlement must be a matter of communal concern. Hence “You shall drive out the inhabitants of the land” (in contradistinction to “you shall utterly destroy them”) must also be addressed to the community in general rather than to individuals <i>qua</i> individuals. Thus the communal obligation to wage war against the Seven Nations is derived from Numbers 33:53 but is not deemed by Rambam to be a distinct <i>miẓvah.</i> Rather, he regards it as merely supplementary to the general commandment formulated in Deuteronomy 7:2 and Deuteronomy 20:7 that serves to establish a personal obligation.</i> the war against Amalek and [a war] to deliver Israel from an enemy who has attacked them (<i>she-ba aleihem</i>). Thereafter he may wage a <i>milḥemet reshut,</i> which is a war against other people in order to enlarge the borders of Israel and to enhance his greatness and prestige.11<i class="footnote">Rashi, <i>Sotah</i> 44b, describes the “wars of the House of David” as wars “which he fought in Aram Zoba in order to annex it to the Land of Israel and against others of his neighbors in order that they bring him tribute and servants to do taskwork.” A literal reading of a narrative reported in <i>Berakhot</i> 3b and <i>Sanhedrin</i> 16a would yield the inference that a <i>milḥemet reshut</i> may be undertaken for economic reasons; see, however, below, notes 42 and 51.</i>
  Rambam employs the terms <i>milḥemet mizvah</i> and <i>milḥemet reshut</i> in establishing dichotomous categories in accordance with the nomenclature adopted by the Sages. The Sages, it will be remembered, regarded a preemptive war "to diminish the heathens so that they shall not march against them" as being entirely in the nature of a discretionary war and hence had no need to introduce a third term, viz., <i>milḥemet ḥovah,</i> in order to distinguish between preemptive war and war for the conquest of Canaan. The term <i>"milḥemet ḥovah"</i> is employed only by R. Judah in order to distinguish the various "commanded" wars from preemptive war.12<i class="footnote">See <i>Leḥem Mishneh, ad loc</i>.</i>
  Rambam's formulation is puzzling on two counts: (1) Rambam fails to state that preemptive wars are discretionary and hence can be undertaken only by a monarch with the approval of the Sanhedrin. Indeed, Rambam completely fails to rule upon or to record the status of preemptive war.13<i class="footnote">A novel view with regard to the purposes for which a <i>milḥemet reshut</i> may be undertaken is presented by R. Isser Zalman Meltzer, <i>Even ha-Azel, Hilkhot Melakhim</i> 5:1, on the basis of an inference from the phraseology employed by Rambam in his <i>Commentary on the Mishnah. Even ha-Azel</i> asserts that the Gemara focuses upon war “to diminish the heathens” only because of the need to categorize such warfare as <i>milḥemet miẓvah</i> according to R. Judah. <i>Milḥamot reshut,</i> argues <i>Even ha-Azel,</i> are not circumscribed by specifically enumerated motives. Rather, since approval of the Sanhedrin is required for a <i>milḥemet reshut</i>, it is to be presumed that such permission will not be forthcoming unless there exists good and sufficient reason for waging war. Rambam, in his <i>Mishneh Torah,</i> omits all reference to war “to diminish the heathens,” explains <i>Even ha-Azel,</i> because, according to the Sages who view hostilities undertaken for that purpose as a <i>milḥemet reshut,</i> such motivation is not of unique halakhic significance. However, this explanation does not really resolve the problem of Rambam’s omission of this category of <i>milḥemet reshut</i> since Rambam does find it necessary to refer specifically to other considerations for which a <i>milḥemet reshut</i> may be undertaken.</i> (2) Among <i>milḥamot mizvah</i> Rambam posits a category of war for which there is no apparent talmudic reference, viz., "[a war] to deliver Israel from an enemy."
  A facile solution to both problems might be found were it to be assumed that Rambam's use of the phrase "[a war] to deliver Israel from an enemy" is intended simply as a reformulation of the Gemara's concept of a preemptive war.14<i class="footnote">Precisely such an interpretation is offered by <i>Knesset ha-Gedolah,</i> IV, <i>Hilkhot Melakhim,</i> chapter 5. <i>Knesset ha-Gedolah</i> understands the phrase “the deliverance of Israel from an enemy <i>she-ba aleihem</i> as meaning “the enemy who comes (i.e., who is about to come) upon them.” <i>Knesset ha-Gedolah</i> suggests that this concept is synonymous with the category of war “to diminish the heathens so that they shall not march against them” discussed in <i>Sotah</i> 44b. Moreover, <i>Knesset ha-Gedolah</i> interprets the Gemara’s discussion in a manner entirely at variance from that of Rashi and other commentaries with the result that a war “to diminish the heathens” is described as a <i>milḥemet miẓvah</i> according to the Sages; see above, note 3. <i>Knesset ha-Gedolah</i> himself concedes that this interpretation of the talmudic discussion is tortured and concludes by saying, “But what can I do, for the difficulty with the words of our master [Rambam] brought me to this.”</i> However, such interpretation of Rambam's statement cannot be sustained for a number of reasons: (1) The appropriate canons of halakhic decision-making require a ruling in accordance with the majority opinion, i.e., in accordance with the opinion of the Sages. (2) If Rambam rules in accordance with R. Judah's opinion it would have been necessary for him to employ terminology distinguishing between <i>milḥemet mizvah</i> and <i>milḥemet ḥovah.</i> (3) Finally, although, according to R. Judah, a preemptive war is analogous to war against the Seven Nations and war against Amalek and, since it does constitute fulfillment of a <i>mizvah,</i> participation in such a war exempts those so engaged from fulfilling other commandments, nevertheless, even according to R. Judah, the waging of preemptive war requires a monarch and the consent of the Sanhedrin. Since, in the very next paragraph, <i>Hilkhot Melakhim</i> 5:2, Rambam proceeds to state that the wars that he has categorized as <i>milḥamot mizvah</i> do not require consent of the Sanhedrin, it is clear that war "to deliver Israel from an enemy" is not identical with the war depicted by the Gemara as undertaken "to diminish the heathens so that they shall not march against them."
  Moreover, the phraseology employed by Rambam in this context—"<i>she-ba aleihem"</i>— although not entirely unequivocal, is most readily understood as referring to defensive warfare in response to an armed attack rather than as referring to a preemptive strike. Thus <i>Hazon Ish, Oraḥ Hayyim-Mo'ed</i> 114:2, carefully defines the term <i>"she-ba aleihem"</i> as meaning <i>"she-kvar ba aleihem</i>—who has <i>already</i> attacked them."15<i class="footnote">Cf., however, <i>Arukh ha-Shulḥan he-Atid, Hilkhot Melakhim</i> 74:4, who apparently understands the phrase <i>“she-ba aleihem</i>” as meaning “who is coming upon them” and declares that Rambam’s ruling applies only in situations in which “there exists a suspicion that they will attack us.” It is difficult to reconcile this statement of <i>Arukh ha-Shulḥan he-Atid</i> with <i>Arukh ha-Shulḥan he-Atid</i>’s own statement in the immediately preceding section, <i>Hilkhot Melakhim</i> 74:3, in which, in a different context, he categorizes preemptive action under the identical circumstances as a <i>milḥemet reshut</i> rather than as a <i>milḥemet miẓvah. Arukh ha-Shulḥan he-Atid</i> declares that the categorization of such war in <i>Sotah</i> 44b as <i>milḥemet reshut</i> is solely for the purpose of excluding from military service those individuals described in Deuteronomy 20:5-8; however, insofar as military response to a potential aggressor is concerned, <i>Arukh ha-Shulḥan he-Atid</i> maintains that all are in agreement that such response constitutes a <i>milḥemet miẓvah.</i> Cf., also, <i>Amud ha-Yemini,</i> no. 16, chap. 5, sec. 25 and below, note 23.</i> This interpretation of Rambam is reflected in the comments of an early authority, R. Menachem Me'iri, in his <i>Bet ha-Beḥirah, Sotah</i> 43a. Me'iri indicates that the controversy between the Sages and R. Judah is limited to preemptive war against a potential aggressor. However, asserts Me'iri, in a situation in which an attack is already underway, all agree that military action in response constitutes an obligatory war. Me'iri writes, "[R. Judah and the Sages] disagree only when they go to war against their enemies because they fear lest [their enemies] attack or when it is known by them that the enemies are preparing themselves [for attack]," thereby implying that once the attack has commenced a defensive military response constitutes an obligatory war. 
  There is also a discrepancy between Rambam's definition of <i>milḥemet reshut</i> and the description of such war which is recorded by the Gemara. The Gemara, <i>Sotah</i> 44b, speaks of <i>milḥamot reshut</i> as "the wars of the House of David for territorial expansion (<i>le-revaḥah</i>)" while Rambam speaks of war not only "to enlarge the borders of Israel," but also "to enhance [the monarch's] greatness and prestige."
  <i>Leḥem Mishneh</i> endeavors to resolve these difficulties by interpreting Rambam's categorization of war "to enhance [the monarch's] greatness and prestige" as coextensive with war described by the Gemara as designed "to diminish the heathens so that they shall not march against them." The phrase "to enhance his greatness and prestige" is understood by <i>Leḥem Mishneh,</i> not as a reference to vainglorious considerations, but as a reference to war undertaken in order to instill fear in potential enemies so that they refrain from attack. War of this nature can, of course, be undertaken only with the approval of the Sanhedrin and the consent of the <i>urim ve-tumim.</i> Rambam, then, according to <i>Leḥem Mishneh,</i> rules entirely in accordance with the opinion of the Sages and does not fail to include preemptive war in the category of <i>milḥemet reshut.</i>
  <i>Leḥem Mishneh'</i>s equation of Rambam's phrase "to enhance his greatness and prestige" with the Gemara's notion of a war "to diminish the heathens so that they shall not march against them" serves to broaden the latter category so greatly as to make it all-inclusive.16<i class="footnote">See <i>Arukh ha Shulḥan he-Atid, Hilkhot Melakhim</i> 74:3. <i>Arukh ha-Shulḥan he-Atid</i> states that the phrase “so that they shall not march against them” contradicts <i>Leḥem Mishneh</i>’s assumption and “clearly implies that they hear of this and have some indication that this is indeed the case;” absent such indication even a <i>milḥemet reshut</i> would not be warranted. See also <i>Ḥazon Ish, Oraḥ Ḥayyim-Mo’ed</i> 114:2.</i> The Gemara's phrase certainly has the connotation that the heathens against whom the preemptive strike is undertaken constitute at least a potential danger. However, according to <i>Leḥem Mishneh</i>'s understanding, terrorization even of nations possessing no capability for harm would be justified as a <i>milḥemet reshut</i> on the grounds that such action is designed to instill fear in all and sundry. 
  <i>Leḥem Mishneh</i>'s analysis of Rambam's views yields but one of a number of definitions of "war to diminish the heathens" and hence constitutes one of a number of positions with regard to the permissibility of preemptive war. A somewhat more restrictive definition of war "to diminish the heathens so that they shall not march against them" is advanced by <i>Shiyurei Korban</i> (addenda to <i>Korban ha-Edah,</i> a standard commentary on the Palestinian Talmud). <i>Shiyurei Korban,</i> Palestinian Talmud, <i>Sotah</i> 8:10, defines as a <i>milḥemet reshut</i> a war undertaken "against neighbors in the fear that with the passage of time they will wage war [against Israel]; therefore [the king] wages war against them at the present time in order to decimate them so that they not possess the might to attack Israel." According to <i>Shiyurei Korban,</i> preemptive war is warranted even in the absence of any fear of imminent attack but is justified only when directed against a potential aggressor and designed to thwart development of military capacity for attack. 
  The definitions of war "to diminish the heathens" presented both by <i>Leḥem Mishneh</i> and by <i>Shiyurei Korban</i> are contradicted by Rambam's statement in his <i>Commentary on the Mishnah, Sotah</i> 8:7. In explaining the controversy between R. Judah and the Sages, Rambam, according to the standard Ibn Tibbon translation of the <i>Commentary on the Mishnah,</i> declares, "But they disagree only with regard to killing those who kill them in order to weaken them so that they will not kill [the people of] Israel and not do battle in their land." As depicted in this source, the war in question is hardly preemptive; it is directed against "those who kill them" and hence, in common parlance, would be termed a defensive war. If understood literally, Rambam here declares war against "those who kill them" to be a <i>milḥemet reshut</i> requiring for its conduct a king, Sanhedrin and <i>urim ve-tumim</i> and hence precluded in our day. According to this position, military action that is entirely of a preemptive nature does not qualify even as a <i>milḥemet reshut</i> and hence is never legitimate. 
  Apart from the conceptual difficulties associated with a position that regards defensive action as being subject to the restrictions placed upon a <i>milḥemet reshut,</i> a literal reading of the Ibn Tibbon text of the <i>Commentary on the Mishnah</i> is contradicted by Rambam's own earlier-cited statement in <i>Hilkhot Melakhim</i> 5:1 in which Rambam enumerates war "to deliver Israel from an enemy which has attacked them" as an instance of <i>milḥemet mizvah.</i>
  These apparently contradictory statements may perhaps be reconciled if due consideration is given to the concluding phrase found in the <i>Commentary on the Mishnah</i>: "… so that they will not kill [the People of] Israel <i>and not do battle in their land."</i> Although the explanation is somewhat tenuous, the contradiction is resolved if it be postulated that Rambam views such wars as discretionary only when required for purposes of defense at a time when the enemy has as yet not penetrated the territory of the Land of Israel as is evidenced by the words "and not do battle <i>in their land</i>." Rambam's statement in the <i>Mishneh Torah</i> describing war "to deliver Israel from an enemy" as a mandatory war would then be understood as restricted solely to defensive war conducted within the boundaries of the Land of Israel.17<i class="footnote">Precisely such an interpretation of Rambam’s statement in the <i>Mishneh Torah</i> is advanced by R. Ovadiah Hedaya, <i>Talpiyot,</i> III, no. 3-4 (Nisan 5708), pp. 381-82, on entirely different grounds. See also R. Raphael Katzenellenbogen, <i>No’am,</i> XVI (5733), 45ff.</i> According to this analysis, military action designed only to defend the populace is categorized as discretionary; war for defense of the territorial integrity of the Land of Israel constitutes an obligatory war just as the original conquest of <i>Erez Yisra'el</i> is categorized a <i>milḥemet mizvah</i>. 
  This resolution of the apparent contradiction found in Rambam's statements is far from incontrovertible.18<i class="footnote">This understanding of Rambam seems to be contradicted by <i>Eruvin</i> 45a. See our discussion in section III and below, note 31. Cf., R. Raphael Katzenellenbogen, <i>No’am,</i> XVI, 45ff. Moreover, as demonstrated in <i>Contemporary Halakhic Problems,</i> II, 193-99, there is strong reason to assume that Rambam maintains that conquest of the territory of the Land of Israel (as distinct from annihilation of the Seven Nations) either does not constitute a <i>miẓvah</i> or, more likely, constituted a <i>miẓvah</i> only during the period of the original conquest. See also above, note 10. In addition, the term “<i>ezrat Yisra’el</i>” employed by Rambam appears to connote aid rendered to people rather than the defense of territory.</i> The difficulty might well be resolved in an alternative manner by reinterpretation of Rambam's phraseology in the <i>Commentary on the Mishnah.</i> It is therefore not at all surprising to find that <i>Hazon Ish, Oraḥ Hayyim-Mo'ed</i> 114:2, understands the phrase "those who kill them" employed by Rambam in his <i>Commentary on the Mishnah</i> in defining war "to diminish the heathens" as referring, not to a situation in which Israel is under attack, but to a situation in which "they kill [people of] Israel intermittently but do not engage in battle … but when they come upon an individual Jew or a group [of Jews] they kill him." The situation depicted by <i>Hazon Ish</i> is roughly analogous to a war of attrition. According to <i>Hazon Ish,</i> then, participation in military action in response to a war of attrition, although it does not constitute a <i>milḥemet ḥovah,</i> does, nevertheless, constitute fulfillment of a <i>mizvah</i> according to R. Judah who, as will be remembered, describes war "to diminish the heathens" as a <i>milḥemet mizvah. Hazon Ish,</i> in his subsequent comments, seemingly has no difficulty in not equating response to a war of attrition with defensive action against an enemy engaged in formal battle which is deemed obligatory. <i>Hazon Ish</i> does, however, express ignorance of any possible consideration that might explain the Sages' refusal to designate participation in such action as constituting the fulfillment of a <i>mizvah.</i>
  The Kapaḥ edition of Rambam's <i>Commentary on the Mishnah</i> contains an entirely different reading. According to that version, Rambam declares, "They disagree only with regard to a war against nations which wage war against [Israel] in order to weaken [those nations]." The situation described cannot be understood as one involving actual hostilities against Israel because, as stated by Me'iri, a war of defense constitutes a <i>milḥemet mizvah</i> even according to the Sages. Such defensive war is recognized by Rambam himself as constituting a <i>milḥemet mizvah</i> as indicated by his inclusion of war "to deliver Israel from an enemy who has attacked them" in the category of <i>milḥamot mizvah</i> in his codification of this concept in the <i>Mishneh Torah.</i> Hence the situation depicted as a <i>milḥemet reshut</i> undertaken "to diminish the heathens so that they shall not march upon them" must involve circumstances in which the heathens have as yet not engaged in actual hostilities but whose aggressive intentions are announced or are readily apparent.19<i class="footnote">Rema’s ruling is, of course, entirely consistent with the position espoused by <i>Arukh ha-Shulḥan he-Atid.</i> However, as noted earlier, the preponderance of rabbinic authority is <i>contra</i> the position of <i>Arukh ha-Shulḥan he-Atid.</i> Thus, for example, <i>Ḥazon Ish,</i> as noted, declares that war “to deliver Israel from an enemy” constitutes a <i>milḥemet miẓvah</i> only when the enemy has actually “come upon them”—terminology directly contradictory to that employed by Rema.It should be noted that, in a statement dated 9 Tammuz 5742, the Chief Rabbinate Council of the State of Israel declared the war of <i>Shalom ha-Galil</i> to constitute a <i>milḥemet miẓvah.</i> The war is described as necessary “to deliver Israel from an enemy” and Rema, <i>Oraḥ Ḥayyim</i> 330:6, is cited as broadening this category to encompass deliverance from a putative attack. It is, however, difficult to determine whether that proclamation is intended to be understood as halakhic or hortative in nature. The same statement continues with a discussion of the conduct of the Israeli Defense Forces and cites the verse “and your camp shall be holy” (Deuteronomy 23:15) in what can only be described as a homiletic vein. In its halakhic context, Deuteronomy 23:15 constitutes an exhortation to implement certain hygienic measures. This statement was published in its entirety in the <i>Algemeiner Journal,</i> July 16, 1982, p. 5. An English translation appeared in the London <i>Jewish Chronicle,</i> July 23, 1982, p. 35.</i> The circumstances depicted in the Kapaḥ version of the <i>Commentary on the Mishnah</i> are roughly the equivalent of a state of belligerence as distinct from a state of war. 
  Regardless of which text of Rambam's <i>Commentary on the Mishnah</i> is accepted as authentic, it is clear that, contrary to <i>Leḥem Mishneh,</i> war for the purpose of creating a climate of fear could not be sanctioned even as a <i>milḥemet reshut</i>; nor, contrary to the position of <i>Shiyurei Korban,</i> would Rambam sanction, even as a <i>milḥemet reshut,</i> military action undertaken simply to prevent a military build-up. 
  Me'iri, in his commentary on <i>Sotah</i> 43a, adopts a definition of war "to diminish the heathens" that is somewhat broader than that formulated by Rambam. Me'iri defines war "to diminish the heathens so that they shall not march against them" as an action undertaken by Israel "against their enemies because they fear lest [their enemies] attack or when it is known that the [enemies] are preparing themselves for attack." Me'iri's definition encompasses not only a declared state of belligerence but also a situation involving a military build-up or a situation in which it is known that the enemy is otherwise actively engaged in preparations for an attack. However, absent clear aggressive design on the part of the enemy, a military response does not qualify as a <i>milḥemet reshut</i> and is illegitimate even according to R. Judah. 
  In summary it may be stated that six diverse definitions of the category of war "to diminish the heathens so that they shall not march against them" may be gleaned from the writings of rabbinic commentators:
  1. According to a literal reading of the Ibn Tibbon translation of Rambam's <i>Commentary on the Mishnah,</i> such military activity is sanctioned as a discretionary war against "those who kill them," i.e., if the enemy has actually been engaged in the taking of Jewish lives.2. According to <i>Hazon Ish,</i> who understands Rambam to be referring to a situation in which "they kill [people of] Israel intermittently but do not engage in battle," only military response to a war of attrition is sanctioned as a discretionary war.3. According to the Kapaḥ edition of the <i>Commentary on the Mishnah,</i> preemptive action is legitimate as a discretionary war only against "nations which wage war against [Israel]," i.e., against nations with regard to which a state of belligerence already exists.4. According to Me'iri, such war is discretionary when there is cogent reason "to fear lest [their enemies] attack or when it is known that the [enemies] are preparing themselves for attack," i.e., in response to a military build-up or when it is known that the enemy is otherwise actively engaged in preparations for attack.5. According to <i>Shiyurei Korban,</i> a preemptive strike is a legitimate form of discretionary war when directed against a potential aggressor in order to prevent the enemy from developing a military capability.6. According to <i>Leḥem Mishneh,</i> military hostilities directed against any foreign power are justified as a form of discretionary war when designed to demonstrate military superiority in order to instill fear in potential aggressors. 
  In arriving at a normative halakhic ruling in light of these conflicting positions, consideration must be given to the fact that the last two definitions of war "to diminish the heathens," both of which are extremely broad in nature, are opinions advanced by latter-day scholars that cannot be deemed authoritative when contradicted by the statements of authoritive early decisors such as Rambam and Me'iri. 
  It must be reiterated that, even when sanctioned by Halakhah, preemptive war constitutes a <i>milḥemet reshut.</i> Since a <i>milḥemet reshut</i> is precluded in our day, a resolution of the conflict between the various authorities who seek to define the concept of a war "to diminish the heathens" is not a matter that demands normative resolution because, regardless of how the term is defined, no <i>milḥemet reshut</i> may be waged in the absence of a king, Sanhedrin and the <i>urim ve-tumim</i>.20<i class="footnote">See <i>Mishpat Kohen,</i> no. 145; <i>Le-Or ha-Halakhah,</i> p. 10; and <i>Amud ha-Yemini,</i> no. 16, chap. 5, sec. 4.</i> Military action in the guise of a <i>milḥemet reshut</i> requires a sovereign at whose sole initiative such war may be undertaken,21<i class="footnote">See above, note 4.</i> prior permission of a Sanhedrin22<i class="footnote">See above, note 5.</i> and acquiescence of the <i>urim ve-tumim.</i> Moreover, puzzling as his position may be, Rambam, in his codification of the law in the <i>Mishneh Torah,</i> neglects to enumerate preemptive war as a form of <i>milḥemet reshut</i> thereby apparently rendering such action illicit under all circumstances. 
  Accordingly, since discretionary war cannot be sanctioned in our day due to the absence of a Sanhedrin and <i>urim ve-tumim,</i> it might appear that a definitive decision with regard to the legitimate parameters of "war to diminish the heathens" is of no practical concern. This, however, is not entirely the case. We are confronted with two distinct categories of war, viz., war "to diminish the heathens" and war designed to "deliver Israel from an enemy." Excluding wars of aggression, these categories appear to be dichotomous. Wars that are not to be categorized as designed "to diminish the heathens" would then be encompassed within the category of war "to deliver Israel from an enemy." Military action categorized as designed "to deliver Israel from an enemy" constitutes a <i>milḥemet mizvah.</i> Thus, for example, according to the Kapaḥ version of the <i>Commentary on the Mishnah,</i> war against a professed enemy who poses no immediate danger is discretionary but hostilities undertaken "when it is known that the [enemies] are preparing themselves for attack" would constitute a <i>milḥemet mizvah,</i> while according to Me'iri such an undertaking would be in the nature of a <i>milḥemet reshut.</i>
  This point is of extreme importance in understanding what must be regarded as a seventh opinion with regard to the distinction between war "to diminish the heathens" and war designed "to deliver Israel from an enemy." R. Yechiel Michal Epstein, <i>Arukh ha-Shulḥan he-Atid, Hilkhot Melakhim</i> 74:3-4, addresses himself to Rambam's omission of any reference to war "to diminish the heathens" in his <i>Mishneh Torah</i> and resolves the question in a manner that yields a completely different understanding of the applicable Halakhah. <i>Arukh ha-Shulḥan he-Atid</i> asserts that the dispute between the Sages and R. Judah with regard to proper categorization of war "to diminish the heathens" is limited solely to the issue of whether the bridegroom must go forth from his chamber and the bride from her canopy. But, asserts <i>Arukh ha-Shulḥan he-Atid,</i> all are in agreement that, even according to the Sages, the king is obligated to engage in battle, not only to defend Israel against overt aggression, but also against potential aggressors "even when there is [only] a suspicion that they may attack us." Contrary to the interpretation of <i>Hazon Ish, Arukh ha-Shulḥan he-Atid</i> argues that Rambam's phraseology in the <i>Mishneh Torah,</i> viz., "war … to deliver Israel from an enemy <i>she-ba aleihem</i>" refers not only to an enemy who has already attacked Israel but also to an enemy who is suspected of harboring aggressive intentions. War "to deliver Israel from an enemy <i>she-ba aleihem</i>" is described by Rambam as commanded and, according to <i>Arukh ha-Shulḥan he-Atid,</i> that categorization includes war against a suspected enemy as well. 
  It must however be stated that <i>Arukh ha-Shulḥan he-Atid</i>'s analysis of Rambam's position is not parallelled in any other commentary. According to both Me'iri and <i>Hazon Ish,</i> war "to deliver Israel from an enemy" is legitimate only in response to an overt act of aggression. 
  III
  The conclusion that war "to deliver Israel from an enemy" is legitimate only in response to an overt act of aggression appears to be contradicted by Rema, <i>Oraḥ Hayyim</i> 229:6. <i>Shulḥan Arukh</i> codifies the ruling found in the Gemara, <i>Eruvin</i> 45a, to the effect that it is permissible, even on the Sabbath, to attack non-Jews who besiege Jewish cities when they threaten the lives of Jews and, in the case of a border city, even if they are intent only upon plunder or economic gain. Rema, in his gloss, appends a comment indicating that this ruling applies "even if they have as yet not come but they intend to come." The obvious import of Rema's comment is that a preemptive response is warranted, on the Sabbath no less than on weekdays, even if the enemy has not engaged in an overt hostile act. In light of the preceding discussion, such a situation could justify only a <i>milḥemet reshut.</i> But, since a <i>milḥemet reshut</i> is precluded in our day, it is difficult to explain the legitimacy of military action that is entirely preemptive in nature.23<i class="footnote"><i>Amud ha-Yemini,</i> no. 16, chap. 5, sec. 25, notes this contradiction and, in effect, rules in accordance with <i>Or Zaru’a</i> as against Me’iri. However, <i>Amud ha-Yemini</i> fails to analyze the various definitions of war “to diminish the heathens” that serve to distinguish such undertakings from defensive war and hence serve to delineate the latter category as well.</i>
  However, if the source cited by Rema is examined carefully an entirely different conclusion may be drawn. Rema's ruling is derived from <i>Or Zaru'a, Hilkhot Shabbat</i> 84:13. The phraseology employed by <i>Or Zaru'a</i> is extremely instructive:
  … in a city close upon the border even if they come only for matters of hay and straw one goes out against them with arms and violates the Sabbath because of them…. And no distinction should be made between a situation in which they have already besieged [the city] and [a situation in which] they say they intend to come and plunder; rather, when the news (<i>kol</i>) goes forth to the effect that they intend to come to plunder, even though they have as yet not come, it is permissible to transport arms to safeguard [the city] and to generate a tumult in the city so that they shall not come, for it is not necessary to be cautious with regard to [situations requiring] preservation of life…. 
  A careful examination of the text shows that <i>Or Zaru'a</i> posits two entirely distinct rulings. The first permits military hostilities even on the Sabbath. In that context the reference is solely to an enemy actively conducting a siege. The second ruling contains a statement explicitly negating any distinction between an enemy actually engaged in a siege and one who merely contemplates hostile action. However, in the latter context no mention is made of any military action whatsoever. On the contrary, reference is made only to bearing arms, i.e., transporting arms through a public thoroughfare, for the purpose of creating a tumult in order to frighten the enemy so that he will not act upon his malevolent designs. <i>Or Zaru'a</i> thus formulates two distinct rules: (1) An armed attack is warranted only when the enemy has actually commenced hostilities; only then is military action designed to take human life permitted as a <i>milḥemet mizvah</i> "to deliver Israel from an enemy." This is a ruling that is encompassed within the rubric of <i>hilkhot milḥamah</i>—the laws of war: defensive war is proper and legitimate in response to an attack.24<i class="footnote">Actually, the first ruling posited by <i>Or Zaru’a</i> need not be regarded as a ruling bearing upon the conduct of a <i>milḥemet miẓvah.</i> As will be shown later, response to actual attacks, at least to the extent necessary to repel the aggressor, is entirely justified on the basis of self-defense.</i> (2) Preemptive action that does not entail the taking of life but only violation of Sabbath restrictions is entirely permissible. Thus, arms may be donned and transported on the Sabbath, not for attack, but in order to frighten the enemy. This is a ruling that is encompassed within the rubric of <i>hilkhot Shabbat</i>—the laws of Sabbath: violation of Sabbath restrictions for preemptive purposes is entirely permissible. The distinction is summed up in the final phrase: "for it is not necessary to be cautious (<i>ein medakdekin</i>) with regard to preservation of life." Sabbath laws are suspended even upon remote possibility of loss of human life; however, the taking of life in the course of war to "deliver Israel from an enemy" is warranted only in response to actual aggression.25<i class="footnote">The statement of the Gemara, <i>Eruvin</i> 45a, permitting a military response in a situation in which a border settlement is besieged solely for purposes of plunder may be understood as limited to situations in which the enemy has already commenced hostilities.</i>
  Rema's comment is culled from the second ruling of <i>Or Zaru'a</i> and presented in the context of <i>hilkhot Shabbat.</i> Rema appends his comment directly upon the phrase "and one may violate the Sabbath because of them." The import of his gloss is that one may violate the Sabbath, not only in response to actual aggression, but even in response to putative aggression. However, Rema sanctions only violation of Sabbath restrictions, e.g., transport of arms; nowhere does he sanction actual warfare in the absence of overt hostilities. 
  Accordingly, neither the statement of <i>Or Zaru'a</i> nor that of Rema, serves to negate the conclusion that war is legitimate only in response to an overt act of aggression.26<i class="footnote">Cf., however, <i>Arukh ha-Shulḥan he-Atid</i> 74:3; R. Shlomoh Goren, <i>Maḥanayim,</i> no. 69 (Iyar 5722), p. 15, reprinted in <i>Torat ha-Shabbat ve-ha-Mo‘ed</i> (Jerusalem, 5742), p. 356; <i>Amud ha-Yemini,</i> no. 16, chap. 5, sec. 25; and the statement of the Chief Rabbinate Council cited above, note 19.</i>
  IV
  Limiting the category of <i>milḥemet mizvah</i> to situations in which the enemy has already exhibited aggressive conduct (in the terminology of <i>Hazon Ish</i>: <i>she-kvar ba aleihem</i>) does not necessarily yield the conclusion that a potential aggressor must be permitted the advantage of the first strike. A limited form of preemptive action may be justified on much more elementary grounds than either <i>milḥemet mizvah</i> or <i>milḥemet reshut.</i> In order to elucidate this point, let us return to an earlier noted difficulty with regard to Rambam's formulation of the various categories of <i>milḥemet mizvah.</i>
  Rambam includes "[a war] to deliver Israel from an enemy who has attacked them" in his enumeration of <i>milḥamot mizvah.</i> Although the concept is entirely cogent, this type of war is not specifically mentioned by the Gemara as an instance of <i>milḥemet mizvah. Mareh Panim,</i> in a gloss on the Palestinian Talmud, <i>Sotah</i> 8:10, points to the following statement recorded in that section of the Palestinian Talmud as the source of Rambam's ruling:
  R. Judah used the term <i>milḥemet mizvah:</i> e.g., when we attack them; <i>milḥemet ḥovah:</i> e.g., when they attack us.27<i class="footnote">The translation follows the reading of <i>Pnei Mosheh.</i> This opinion, as recorded in the Palestinian Talmud, posits a dispute between R. Judah and the Sages concerning the status of a purely defensive war in response to an enemy attack. According to <i>Pnei Mosheh’</i>s reading, R. Judah regards such a war to be a <i>milḥemet ḥovah,</i> while the Sages regard it as a <i>milḥemet reshut. Pnei Mosheh,</i> in his <i>Mareh Panim,</i> states that the Babylonian Talmud accepts R. Judah’s thesis since it views only preemptive war as the subject of dispute and maintains that the Sages agree with R. Judah’s position. <i>Korban ha-Edah</i> records a variant textual reading according to which R. Judah views defensive war as <i>milḥemet reshut</i> while the Sages categorize it as <i>milḥemet miẓvah.</i> See R. Judah Gershuni, <i>Mishpat ha-Melukhah</i> 5:1; cf., <i>Arukh ha-Shulḥan he-Atid, Hilkhot Melakhim</i> 74:3.</i>
  Defensive wars are herein explicitly described by the Palestinian Talmud as <i>milḥemet ḥovah</i> or obligatory wars. Although the Palestinian Talmud ascribes this view to R. Judah, <i>Mareh Panim</i> argues that there exists no dispute between the Sages and R. Judah with regard to this point and hence Rambam incorporates "a war to deliver Israel from an enemy," i.e., a defensive war, in his list of <i>milḥamot mizvah</i>.28<i class="footnote">See also <i>Keren Oraḥ, Sotah</i> 44b. Cf., <i>Le-Or ha-Halakhah,</i> pp. 13-15; <i>Mishpat ha-Melukhah</i> 5:1; and R. Ovadiah Hedaya, <i>Talpiyot,</i> III, no. 3-4, pp. 380-84.</i>
  A more obvious source of Rambam's characterization of a defensive war as a <i>milḥemet mizvah</i> may perhaps lie in a statement found in the Babylonian Talmud.29<i class="footnote">R. Aaron Soloveichik, <i>Or ha-Mizraḥ,</i> Tevet 5730, posits <i>Midrash Tanḥuma, Parshat Pinḥas,</i> sec. 3, as Rambam’s source. Deuteronomy 26:17-18 states, “Harass the Midianites and smite them; for they harass you.” <i>Tanḥuma</i> comments: “On the basis of this verse our Sages said, ‘If [a person] comes to slay you, arise and slay him.’ ” In context, the mandated response is not merely individual self-defense but a defensive war.</i> As noted earlier, the Gemara, <i>Eruvin</i> 45a, declares that it is permissible to resist aggression likely to result in loss of life by going to battle even on the Sabbath.30<i class="footnote">See also <i>Arukh ha-Shulḥan he-Atid, Hilkhot Melakhim</i> 74:3. Cf., however, R. Shlomoh Goren, <i>Maḥanayim,</i> no. 69, p. 9, and <i>Torat ha-Shabbat ve-ha-Mo‘ed</i>, p. 345; cf., also, below, note 31.</i> The Gemara must be understood as sanctioning such military activity in the guise of a <i>milḥemet mizvah</i> rather than as a <i>milḥemet reshut</i> for two reasons: (1) A <i>milḥemet reshut</i> requires a monarch, Sanhedrin, and the <i>urim ve-tumim,</i> none of which were available during the period of the Amora'im. (2) A <i>milḥemet reshut</i> may not be initiated on the Sabbath. Indeed, the Gemara, <i>Shabbat</i> 19a, followed by Rambam, <i>Hilkhot Shabbat</i> 2:25, declares that a siege may not be commenced within a three-day period prior to the Sabbath. Rashi, Deuteronomy 20:19, and <i>Leḥem Mishneh, Hilkhot Shabbat</i> 2:25, declare that this restriction applies only to discretionary wars but not to <i>milḥamot mizvah.</i>31<i class="footnote">Since the Gemara, <i>Eruvin</i> 45a, permits military action in defense of border settlements even when no certain threat to life exists, the response that is sanctioned cannot be understood to be in the nature of collective self-defense but must be in the nature of a halakhic category of war. This distinction will be elucidated below. See also, above, note 25.</i>
  Parenthetically, it is evident that there exists no requirement for acquiescence of the <i>urim ve-tumim</i> prior to initiating the type of warfare described in <i>Eruvin</i> 45a. No mention is made of such requirement either in association with the talmudic discussion or in the various expositions of this provision of normative Jewish law as recorded in <i>Shulḥan Arukh, Oraḥ Hayyim</i> 329:6. It is logical to assume that, although, as noted earlier, Ramban posits a requirement for acquiescence of the <i>urim ve-tumim</i> as a prior condition for waging a <i>milḥemet mizvah</i> as well as for waging a <i>milḥemet reshut,</i> such permission is not required in the case of defensive war. In light of the fact that the dictum recorded in <i>Eruvin</i> 45a sanctioning defensive war was expressed in absolute terms by R. Judah in the name of Rav at a time when the <i>urim ve-tumim</i> was no longer extant that statement may serve as a source for the conclusion that defensive war does not require prior dispensation of the <i>urim ve-tumim.</i>
  It should not be assumed that inclusion among obligatory wars of a war "to deliver Israel from the enemy" is simply the application of the law of the "pursuer" (<i>rodef</i>).32<i class="footnote">Cf., <i>Shiyurei Korban,</i> Palestinian Talmud, <i>Sotah</i> 8:10, who erroneously assumes that the law of pursuit incontrovertibly establishes an obligation to go to war to defend the victim of aggression.</i> Jewish law requires that a bystander must intervene in order to save the life of an intended victim.33<i class="footnote"><i>Sanhedrin</i> 72b; Rambam, <i>Hilkhot Roẓeaḥ</i> 1:6-7 and 1:9; <i>Shulḥan Arukh, Ḥoshen Mishpat</i> 425:1.</i> This rule is subject to the qualification that the life of the aggressor is forfeit only if the intended victim cannot be saved other than by killing the aggressor.34<i class="footnote"><i>Sanhedrin</i> 49a, 56a and 74a; <i>Baba Kamma</i> 28a; Rambam, <i>Hilkhot Roẓeaḥ</i> 1:7; and <i>Shulḥan Arukh, Ḥoshen Mishpat</i> 425:1.</i> Thus, the law of <i>rodef</i> would require that assistance be rendered to victims of military aggression. It is clear, however, that the category of <i>milḥemet mizvah</i> requires intervention even under circumstances in which the law of <i>rodef</i> would not mandate, or even permit, intervention. 
  According to virtually all authorities, a person need not jeopardize his own life in order to preserve the life of another.35<i class="footnote">See <i>Teshuvot Radbaz</i>, III, no. 1,052; <i>Pri Megadim, Mishbeẓot Zahav</i> 328:7; <i>Shulḥan Arukh ha-Rav</i>, VI, <i>Hilkhot Nizkei Guf va-Nefesh 7; Arukh ha-Shulḥan, Ḥoshen Mishpat</i> 426:4; and <i>Pitḥei Teshuvah, Ḥoshen Mishpat</i> 426:2. Cf., however, <i>Kesef Mishneh, Hilkhot Roẓeaḥ</i> 1:14, and <i>Bet Yosef, Ḥoshen Mishpat</i> 426.</i> Thus there is no obligation to eliminate a <i>rodef</i> if it is necessary to risk one's own life in order to do so. Yet war, virtually by definition, constitutes a threat to the lives of all combatants. Hence any individual who might otherwise seek refuge and thereby protect his own life could not be obligated by virtue of the law of pursuit to engage in battle in order to "deliver Israel from an enemy."
  Moreover, the law of pursuit can be invoked, and the life of the aggressor becomes forfeit, only when failure to intervene will certainly, or almost certainly, result in the death of the intended victim.36<i class="footnote">See Rashi, <i>Sanhedrin</i> 72a., <i>s.v. hakhi garsinan,</i> and Rashi, <i>Pesaḥim</i> 2b, <i>s.v. hakhi ka-amar</i>; <i>Teshuvot Koaḥ Shor,</i> no. 20; and <i>Iggerot Mosheh, Ḥoshen Mishpat,</i> II, no. 69, sec. 2, <i>s.v. ve-la-khen.</i> Cf., however, <i>Bi’ur ha-Gra, Ḥoshen Mishpat</i> 388:74 and this writer’s article, “Hasgarat Poshe’a Yehud, she-Baraḥ le-Ereẓ Yisra’el,” <i>Or ha-Mizraḥ,</i> Nisan-Tammuz, 5747, pp. 260-61.</i> However, the Gemara, <i>Eruvin</i> 45a, sanctions defensive action, on the Sabbath as well as on weekdays, against heathens who besiege a border settlement even though the marauding forces seek only "straw and hay," i.e., they are intent only upon looting or exacting economic concessions. It is clear that in such situations there exists no imminent danger; it is not at all certain that any life will be endangered. There is, however, reason to fear that even if the aggressors' immediate pecuniary or economic goals are achieved without resistance, having penetrated border defenses, the enemy may engage in warfare at some future time and thereby endanger Jewish lives. The loss of fortified border settlements would leave the entire country exposed and defenseless. Hence defensive measures are warranted. Such measures could not be justified on the basis of the law of pursuit since it is not at all certain, or even likely, that failure to respond militarily would result in loss of life. Nevertheless, defensive war is clearly justified by Halakhah under such circumstances. Thus, while the law of pursuit may be invoked only in face of imminent danger to life, defensive war is justified in order to forestall even remote future danger. 
  Perhaps of even greater significance is the fact that war almost inevitably results in civilian casualties as well as the loss of combatants. The taking of innocent lives certainly cannot be justified on the basis of the law of pursuit. The life of the pursuer is forfeit in order that the life of the intended victim be preserved. However, should it be impossible to eliminate the pursuer other than by also causing the death of an innocent bystander, the law of pursuit could not be invoked even by the intended victim, much less so by a third party who is himself not personally endangered. Since the law of pursuit is designed to preserve the life of the innocent victim, it is only logical that it is forbidden to cause the death of a bystander in the process since to do so would only entail the loss of another innocent life. In such situations the talmudic principle "How do you know that your blood is sweeter than the blood of your fellow?" (<i>Sanhedrin</i> 74a) is fully applicable.37<i class="footnote"><i>Amud ha-Yemini,</i> no. 16, chap. 4, discusses the applicability of this principle to the question of the sacrifice of gentile lives for the preservation of Jewish lives. Notwithstanding terminology employed by Rashi, <i>Sanhedrin</i> 74a, <i>s.v. mai ḥazit,</i> Rabbi Israeli rules that it is forbidden to take the life of a non-Jew in order to save the life of a Jew. Cf., <i>Tiferet Yisra’el, Bo’az, Oholot</i> 7:10; <i>Noda bi-Yehuda, Mahadura Tinyana, Ḥoshen Mishpat,</i> no. 59; <i>Perashat Derakhim, Derush</i> 17; <i>Minḥat Ḥinnukh,</i> no. 296; and R. Eliezer Waldenberg, <i>Ẓiẓ Eli’ezer,</i> X, no. 25, chap. 5, sec. 4. Cf., however, Palestinian Talmud, <i>Shabbat</i> 14:4, and R. Mordecai Halperin, <i>Assia,</i> vol. X, no. 4, (Tammuz, 5725), pp. 22-23. For an analysis of the problem posed by the Palestinian Talmud see this writer’s discussion in <i>Or Ha-Mizraḥ,</i> (Nisan-Tammuz 5748), pp. 293-295.See Ra’avan, <i>Baba Kamma</i> 111b, and <i>Kesef Mishneh, Hilkhot Roẓeaḥ</i> 2:11, who declare that taking the life of a non-Jew is encompassed in the prohibition against homicide; see also <i>Mekhilta, Mishpatim</i> 4:58. The line of reasoning employed by <i>Ḥakham ẓevi,</i> no. 26, and <i>Ḥut ha-Meshulash,</i> no. 17, with regard to theft of property belonging to a non-Jew would appear to apply, <i>mutatis mutandis,</i> to homicide as well. <i>Meshekh Ḥokhmah, Parshat Mishpatim, s.v. ve-yitakhen,</i> avers that the slaying of a non-Jew is a more severe transgression than taking the life of a Jew and that it is precisely for that reason that “punishment is reserved to Heaven.” See also Ibn Ezra, <i>Commentary on the Bible,</i> Exodus 21:21. Cf. R. Simchah Shustal, <i>Koveẓ Nehora’i,</i> I (5740), pp. 86-91.</i>
  Were war to be sanctioned solely on the basis of the law of pursuit, military action would perforce be restricted to situations in which loss of life is inflicted only upon armed aggressors or upon active participants in the war effort; military action resulting in casualties among the civilian populace would constitute homicide, pure and simple. However, not only does one search in vain for a ruling prohibiting military activity likely to result in the death of civilians,38<i class="footnote"><i>Amud ha-Yemini,</i> no. 16, chap. 5, sec. 1.</i> but, to this writer's knowledge, there exists no discussion in classical rabbinic sources that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities legitimately undertaken as posing a halakhic or moral problem.39<i class="footnote">For a contemporary discussion of this issue see <i>Amud ha-Yemini,</i> no. 16, chaps. 3-5. It may be noted that Scripture records that, prior to engaging in battle against Amalek, Saul said to the Kenites, “Go, depart, go down from among the Amalekites” (I Samuel 15:6). The clear implication is that, had the Kenites not heeded this admonition, Saul might have slain them with impunity in the course of the battle against Amalek.</i>
  Thus specific sanction for defensive war beyond application of the law of pursuit is required in order: (1) to justify conscription, i.e., coercion to endanger one's life in defending others; (2) to sanction defensive war to ward off aggression even when danger to life is remote; and (3) to sanction military activity that is likely to result in casualties among noncombatants. Nevertheless, a voluntary response posing no danger to civilians may be undertaken in face of imminent danger even in a preemptive manner. In halakhic terms, such resistance is not encompassed within the rubric of war and does not require sanction as either <i>milḥemet mizvah</i> or <i>milḥemet reshut.</i> Such response is essentially not an act of war but of simple self-defense. Individual self-defense is permitted by virtue of the principle "If [a person] comes to slay you, arise and slay him" (<i>Berakhot</i> 58a and 62b; <i>Sanhedrin</i> 72a). Such response, which is entirely legitimate on the part of any individual victim of putative aggression, is, <i>mutatis mutandis,</i> legitimate when undertaken by society as a whole as an aggregate of individual victims. 
  V
  Categorization of a preemptive attack as a <i>milḥemet reshut</i> is problematic regardless of the precise circumstances under which such war is justified. Such action is not deemed mandatory but is nevertheless permitted as a <i>milḥemet reshut</i> despite the apparent absence of specific scriptural authorization.40<i class="footnote">Although not explicitly demanding participation in military activity designed to “deliver Israel from an enemy,” Judges 5:23 pronounces a curse against Sisera: “ ‘Curse ye Meroz,’ said the angel of the Lord, ‘curse ye bitterly the inhabitants thereof because they came not to the help of the Lord, to the help of the Lord against the mighty.’ ” Cf., R. Shlomoh Goren, <i>Maḥanayim,</i> no. 20 (<i>Erev Ḥanukkah,</i> 5714), p. 7, reprinted in <i>Torat ha-Mo‘adim,</i> p. 166, and <i>Maḥanayim,</i> no. 97 (5725), p. 7, reprinted in <i>Torat ha-Shabbat ve-ha-Mo‘ed,</i> p. 360.</i> <i>Korban ha-Edah,</i> Palestinian Talmud, <i>Sotah</i> 8:10, suggests that the legitimacy of preemptive war as a <i>milḥemet reshut</i> is derived by the Palestinian Talmud from the scriptural paradigm of King David's war against the Philistines.41<i class="footnote">See, however, <i>Panim Yafot, Parshat Shoftim, s.v. u-mi ha-ish,</i> who notes that the area inhabited by the Philistines, although not conquered by Joshua, was within the boundaries of <i>Ereẓ Yisra’el.</i> Hence King David’s war against the Philistines constituted a <i>milḥemet miẓvah</i> since it served as a war of conquest for territory integral to the Land of Israel.</i> Military action against the Philistines, asserts <i>Korban ha-Edah,</i> was not undertaken in order to conquer territory belonging to the Seven Nations indigenous to the land of Canaan or to expand the boundaries of the Land of Israel, but in order to prevent acts of aggression. 
  It may well be the case that preemptive war undertaken in order to prevent future attack is justified as a <i>milḥemet reshut</i> analogous to war for territoral aggrandizement or economic gain. The Gemara, <i>Berakhot</i> 3b and <i>Sanhedrin</i> 16a, seemingly indicates that discretionary war is warranted, not only when undertaken in order to enlarge the territory of the Land of Israel, but also when motivated by economic considerations.42<i class="footnote">Cf., however R. Reuben Margulies, <i>Margaliyot ha-Yam, Sanhedrin</i> 16a, secs. 22 and 23, and <i>idem</i>, <i>Niẓoẓei Or, Berakhot</i> 3b, who asserts that the hostilities in question were not undertaken for stark economic advantage but were directed against marauding bands who disrupted the economy.</i> Dispensation for such war is subject to approval of the Sanhedrin and acquiescence of the <i>urim ve-tumim.</i> Acquiescence of the <i>urim ve-tumim</i> is tantamount to explicit divine sanction. Positing this requirement implies recognition that war may be undertaken only upon divine behest. Divine sanction for war in limited situations may be forthcoming even when there exists no imminent threat. Accordingly, it may be understood that it is not economic gain <i>per se,</i> or territorial aggrandizement or enhancement of the prestige of the monarch which justifies war; rather any cogent benefit may serve as justification, subject to divine approval as conveyed through the intermediacy of the <i>urim ve-tumim.</i>43<i class="footnote">Cf., <i>Even ha-Azel, Hilkhot Melakhim</i> 5:1.</i> Hence, prevention of a possible, albeit remote, danger is no less worthy a motive than economic gain. Therefore, according to the Sages, preemptive war is encompassed within the category of <i>milḥemet reshut</i> but participation in such warfare fails to constitute a <i>mizvah.</i> However, R. Judah's view, which raises such participation to the level of fulfillment of a <i>mizvah,</i> but not to that of <i>ḥovah</i> or a mandatory undertaking, requires further clarification. 
  Quite apart from the foregoing, the nature of the dispute between R. Judah and the Sages is extremely difficult to explain. All agree that, as a discretionary war, an incursion "to diminish the heathens so that they shall not march against them" requires a monarch and a Sanhedrin; yet R. Judah and the Sages disagree with regard to whether participation in such a venture constitutes fulfillment of a <i>mizvah.</i>
  R. Judah's position may perhaps be understood on the basis of another consideration. In matters not involving war, it is clear that society has an obligation to anticipate future dangers and to prevent possible loss of life even when such danger is remote. The Gemara, <i>Baba Batra</i> 7b, declares that the inhabitants of a city may compel one another to contribute the funds necessary for the erection of fortifications, including construction of a wall circumscribing the city, doors in the wall and bolts to secure the doors. The wall is designed to serve as a means of fortifying the city in order to secure it against armed attack. Since the wall is constructed in order to preserve the lives of the inhabitants, all the townspeople may be compelled to contribute equally in order to defray the expenses incurred on the grounds that all derive equal benefit from the fortifications. 
  Fortifications represent more than a simple amenity; they are designed to protect against loss of life. Were construction of fortifications to be deemed necessary in order to eliminate an imminent danger to human life, each person would be required to do everything within his power to obviate or mitigate the danger. Were construction of the fortifications not to be feasible otherwise, each and every individual would be personally liable to bear the entire expense. At best, any individual who defrays such expenses would have a cause of action against his fellow townspeople for reimbursement of funds expended on their behalf—but each person capable of doing so would be required to act on his own initiative and to act without delay. 
  Such an obligation does not exist with regard to construction of fortifications; no individual is liable for more than his proportionate share of the total expenditure. This is so because, in the circumstances described, there exists no imminent danger. Fortifications are commonly erected, not to protect against present danger, but in anticipation of future contingencies. Precaution against future danger is not an individual obligation but a societal one. Society as a whole must assure that there are lifeguards, physicians and firemen trained to perform their functions and must provide facilities and incentives for the training of such personnel, but no individual is obliged to enter those professions or to volunteer his services in performing such functions. Any member of society may demand that a wall be constructed and that locks and bolts be provided. An individual who expresses a legitimate concern with regard to possible danger and proposes a cogent means for its alleviation must be heard and his demands fulfilled. The obligation to protect against danger of this nature rests upon society as a whole rather than upon any individual.44<i class="footnote">See this writer’s <i>Judaism and Healing</i> (New York, 1981), pp. 13-16.</i>
  A war "to diminish the heathens so that they shall not march against them" may be undertaken and the right forcibly to conscript soldiers for this purpose may be understood as flowing from the societal obligation to forestall future danger. Society has an obligation to prevent danger from arising. Granted that biblical sanction exists for undertaking preemptive war and that such action constitutes a legitimate means of forestalling danger, society, through its sovereign, may be called upon to protect its members by engaging in military activity in order to forestall danger. 
  At the very minimum, prevention of possible future danger constitutes a matter of societal welfare. The Gemara, <i>Baba Batra</i> 8a, states that townspeople may levy taxes and compel one another to contribute the funds necessary to provide amenities such as a well from which to draw water. Rambam, <i>Hilkhot Shekhenim</i> 2:5, records a similar prerogative with regard to construction and maintenance of roads and streets. Nevertheless, participation in the provision of social amenities does not constitute fulfillment of a <i>mizvah</i>45<i class="footnote">Persons engaged in providing social amenities should not be confused with individuals who “occupy themselves with the needs of the public” and who are therefore exempt from recitation of the <i>shema.</i> The latter category includes those engaged in preservation of endangered property but not persons engaged in providing social amenities. See <i>Shulḥan Arukh, Oraḥ Ḥayyim</i> 70:4 and accompanying commentaries. Cf., <i>Teshuvot Imrei Esh, Yoreh De‘ah,</i> no. 52.</i> even though members of society are entitled to institute legal proceedings in order to compel participation by their fellow citizens. Hence the position of the Sages may be understood by ascribing to them the view that prevention of future danger is regarded as entirely similar to providing other amenities, viz., an actionable prerogative, but not a <i>mizvah.</i> Accordingly, preemptive war may, under certain conditions, be compelled but participation in such military activity does not constitute fulfillment of a <i>mizvah.</i> It therefore follows that a person participating in such military activity is not exempt from fulfillment of other <i>mizvot.</i>
  R. Judah, on the other hand, may be understood as maintaining that forestalling future danger is qualitatively different from providing social amenities. Although, in the absence of imminent danger, no individual member of society is personally obligated to take such action, nevertheless, according to R. Judah, action that serves to eliminate future danger, when undertaken, <i>does</i> constitute fulfillment of a <i>mizvah</i> because it is designed to preserve life.46<i class="footnote">Cf., <i>Amud ha-Yemini,</i> no. 16, chap. 5, sec. 27.</i>
  If this analysis is correct, a similar dispute would exist with regard to the question of whether workmen engaged in erecting fortifications around the city are exempt from performance of other <i>mizvot.</i> According to the Sages, since no immediate danger exists, the status of laborers engaged in erecting fortifications is entirely similar to that of workmen engaged in providing social amenities and does not constitute the fulfillment of a <i>mizvah.</i> According to R. Judah, such activity, although not obligatory upon any individual, nevertheless, when undertaken, does constitute a <i>mizvah kiyumit,</i> i.e., such activity does constitute fulfillment of a <i>mizvah.</i> Hence, workmen engaged in erection of fortifications, according to the position of R. Judah, would be exempt from performance of other precepts. 
  This analysis notwithstanding, preemptive war is not entirely analogous to construction of fortifications. Any individual citizen has a right to demand the erection of fortifications and the right to compel his fellow townspeople to share the financial burden. Yet no individual enjoys the right to compel a preemptive strike even under circumstances in which fear of future danger is entirely cogent. Preemptive war as a form of <i>milḥemet reshut</i> may be undertaken only upon the initiative of the sovereign with the consent of the Sanhedrin and acquiescence of the <i>urim ve-tumim.</i>
  VI
  The respective roles and functions of the king, the Sanhedrin, and the <i>urim ve-tumim</i> require elucidation. It is unlikely that this tripartite requirement for declaration of war is designed to provide a system of checks and balances or simply to render actual warfare halakhically difficult. It is certainly cogent to presume that each is designed to satisfy a separate and unique halakhic requirement and hence it is necessary to endeavor to discern the function fulfilled by each. 
  The role of the monarch may be understood in light of a general difficulty associated with the obligation to engage in wars of defense in order "to deliver Israel from an enemy." The obligation to participate in war against the Seven Nations and in war against Amelek is, of course, rooted in specific biblical commandments. However, since the obligation with regard to participation in a defensive war is not based upon either the law of pursuit or upon the obligation to come to the aid of an endangered person, the precise reason why participation in a war "to deliver Israel from an enemy" is deemed obligatory is not readily apparent. Since there exists no explicit biblical imperative to engage in such warfare it is difficult to comprehend the basis for compelling self-endangerment. 
  It is precisely for this reason that a monarch is required for the purposes of waging war. Jewish law recognizes that society has inherent power, albeit limited in nature, with regard to expropriation of the resources of its members. Thus society may levy taxes for the common welfare and compel payment. However, society lacks power to force individuals to place themselves in jeopardy even when endangerment of some is necessary to avert greater danger to the greater number. Jewish law endows the monarch with powers beyond those vested in society. The essence of monarchical power is the power of coercion. A monarch is empowered to force the populace to do his bidding. The king may expropriate property and may conscript soldiers to fight in his wars. Only the sovereign enjoys the power to compel his subjects to endanger their lives.47<i class="footnote">See also, <i>Mishpat Kohen,</i> no. 143 and R. Alexander Epstein, Niv <i>ha-Midrashiyah,</i> Winter-Spring 5728, pp. 72-80. The verse “Lest he die in the war” (Deuteronomy 20:5) as understood by <i>Sifrei, ad loc.,</i> and the earlier cited Mishnah, <i>Sotah</i> 44b, speaks of possible loss of life in the context of <i>milḥemet reshut.</i> Similarly, Rambam, <i>Sefer ha-Miẓvot, Miẓvot aseh</i>, no. 191, in speaking of the function of the address delivered prior to battle by the <i>mashuaḥ milḥamah,</i> (i.e., the “priest annointed for war” for the purpose of addressing the troops), describes the address as designed so that “their hearts be aroused to war and he bring them to endanger themselves.”</i> Rambam, <i>Hilkhot Melakhim</i> 5:2, defines the role of the king with regard to <i>milḥemet mizvah:</i> "He forces the people to go forth." Thus, Halakhah requires not only that <i>milḥemet reshut</i> be initiated by the king but also that <i>milḥemet mizvah</i> be undertaken only upon the initiative of the monarch. Since war requires conscription of soldiers whose lives are placed in jeopardy, war may be declared only by the king. Absent a monarch, there exists no power of conscription and each citizen may decline to participate in battle. Accordingly, despite the general obligation to preserve life and to render assistance to one whose life is in jeopardy, a king is necessary for the proper conduct even of a war "to deliver Israel from an enemy" because, in the absence of a decree of the king committing the populace to war, no person is obligated to jeopardize his own life in order to save the life of his fellow.48<i class="footnote">Cf., R. Raphael Katzenellenbogen, <i>No‘am,</i> XVI, 45ff., who fails to recognize this salient point. Cf., also, the somewhat different analysis of R. Saul Israeli, <i>Torah she-be-‘al Peh, X</i> (5728), 49f.</i>
  The role of the Sanhedrin in the declaration of war is somewhat less obvious but is discernible nonetheless.
  The law of pursuit has two distinct formulations. When the pursuer is intent upon the death of his victim there is an absolute duty to eliminate such threat. Even a bystander must intervene and dare not plead that he declines to save one human life at the cost of another. Rambam, <i>Hilkhot Rozeaḥ</i> 1:9, writes, "This, too, is a negative commandment: not to spare the life of a pursuer." The positive obligation is cited by Rambam, <i>Hilkhot Rozeaḥ</i> 1:7, and predicated upon the verse "And you shall cut off her hand, your eye shall not pity her" (Deuteronomy 25:12). Yet another formulation of the law of pursuit is found in Exodus 22:1: "If a thief be found breaking in, and be smitten that he die, there shall be no blood shed for him." Scripture here provides that one who kills a thief incurs no punishment. The Gemara, <i>Sanhedrin</i> 72a, explains that it is to be assumed that a person will not permit his property to be seized unlawfully without offering resistance. The thief is deemed to be well aware of this instinctive psychological reaction and hence it is presumed that he is prepared to use lethal force should he meet with resistance in carrying out his design. Accordingly, the thief is presumed to be a "pursuer" whose life is forfeit. However, in codifying this law, Rambam, <i>Hilkhot Geneivah</i> 9:7, states only that "All persons have permission to kill [the thief] whether on a weekday or on the Sabbath" but fails to posit an absolute obligation to eliminate the thief as a pursuer. It may be posited that the distinction between the thief who is the subject of this ruling and the aggressor described in <i>Hilkhot Rozeaḥ</i> whose life is always forfeit lies in the fact that the latter is actually intent upon an act of aggression while the former, although he may become an aggressor, is not yet engaged in an actual act of aggression. Elimination of the thief is a preemptive act. Such an act is permissible but is not mandatory. 
  A similar distinction may be drawn in regard to war. Defensive response to an attack is mandatory in order to save lives. Yet, although a preemptive strike is warranted when there is reason to anticipate danger, such preemptive action is not mandatory in the absence of overt aggression. There are manifold considerations that may serve to render preemptive war imprudent. Rambam, <i>Hilkhot Geneivah</i> 9:12, rules that a householder who is certain that the thief will not kill him has no right to execute the burglar peremptorily in order to preserve his property. A householder who fully intends to offer no resistance when confronted with the threat of force has no right to take the life of the would-be thief preemptively simply in order to preserve his property.49<i class="footnote">The victim may, however, be entitled to wilfully and consciously refuse to accede to theft of his property and, recognizing that his determination to offer resistance serves to endanger his life, may then avail himself of the law of pursuit in defending himself against the oppressor. See R. Shlomoh Zalman Auerbach, <i>Moriah,</i> Sivan-Tammuz 5731, pp. 22-23, reprinted in his <i>Minḥat Shlomoh</i> (Jerusalem, 5746), no. 7, sec. 2.</i> Indeed, it would be highly prudent for the householder to comply with the demands of an armed intruder without offering resistance. Similarly, when it is anticipated that danger to the lives of the populace can be averted by other means, preemptive war may well be imprudent. 
  Moreover, as poignantly noted by <i>Minḥat Hinnukh,</i> no. 425, <i>milḥamot mizvah</i> are obligatory even though all war, by its very nature, involves endangerment of the lives of combatants. Nevertheless, the obligation regarding even <i>milḥamot mizvah</i> does not require the undertaking of suicide missions. War is obligatory only when there is sound military reason to assume that Israel will be victorious.50<i class="footnote">Cf., R. Shlomoh Goren, <i>Torat ha-Mo’adim,</i> p. 179.</i> It would seem that the need to eliminate a potential aggressor is an imperative <i>causus belli</i> that renders even preemptive war permissible "in order to diminish the heathens so that they shall not march against them" only when the lives preserved are greater in number than the lives whose loss may be anticipated as a result of armed conflict. The justification of war in such circumstances is the saving of lives, not the punishment of the enemy. 
  Accordingly, the role of the Sanhedrin is readily discernible. The Sanhedrin is charged with assessing the military, political and economic realia and determining whether a proposed war is indeed necessary and whether it will be successful in achieving its objectives. Hence, the role of the Sanhedrin is limited to <i>milḥamot reshut.</i> Consent of the Sanhedrin is not required to sanction <i>milḥamot mizvah</i> since the latter are commanded by God directly and must be carried out by virtue of divine fiat.51<i class="footnote">Rashi, <i>Berakhot</i> 3b, commenting on an incident related by the Gemara, states that the Sanhedrin was consulted “so that they might pray on their behalf.” R. Reuben Margulies, <i>Margaliyot ha-Yam, Sanhedrin</i> 16a, sec. 23, and <i>Niẓoẓei Or, Berakhot</i> 3b, explains that the military action under discussion constituted a <i>milḥemet miẓvah</i> that did not require statutory consultation of the Sanhedrin. Alternatively, approval of the Sanhedrin may not have been required since, in the incident recorded, the war was undertaken upon the initiative of the populace. See <i>Einayim la-Mishpat, Sanhedrin</i> 16a and above, note 5. Cf., <i>Amud ha-Yemini,</i> no. 16, chap. 5, sec. 6.</i>
  The role of the <i>urim ve-tumim</i> is much more difficult to elucidate. As noted earlier, Ramban maintains that acquiescence of the <i>urim ve-tumim</i> was required not only for <i>milḥamot reshut</i> but for <i>milḥamot mizvah</i> as well. Yet war "to deliver Israel from an enemy" does not require consultation of the <i>urim ve-tumim.</i>
  Although the matter is not raised by any of the commentators on the <i>Mishneh Torah,</i> it is difficult to explain why it is that war for "deliverance of Israel from an enemy" does not require consultation of the <i>urim ve-tumim.</i> As noted earlier, the absence of such a requirement may be inferred on the basis of <i>Eruvin</i> 45a. Certainly, it is implicitly assumed by all who discuss the topic that war for this purpose requires no such consultation. The reference to consultation of the <i>urim ve-tumim</i> in the concluding section of the introduction to Rambam's <i>Sefer ha-Mizvot</i> and in Ramban's addenda to that work may be understood as speaking of this requirement only in conjunction with wars of conquest. It is, of course, readily understandable that acts of violence undertaken by an individual in self-defense do not require permission of the <i>urim ve-tumim.</i> It is understandable that military action undertaken by a nation as a means of self-defense similarly require no specific <i>ad hoc</i> dispensation. However, as has been shown, military action undertaken in guise of a <i>milḥemet mizvah</i> "in order to deliver Israel from an enemy" goes beyond acts that an individual in similar straits might justify as a legitimate form of self-defense. Why, then, does this type of warfare not require sanction of the <i>urim ve-tumim?</i>
  Conversely, the requirement for acquiescence of the <i>urim ve-tumim</i> prior to engaging in war against the Seven Nations is particularly puzzling. Acquiescence of the <i>urim ve-tumim</i> is required, according to Ramban, not only for <i>milḥamot reshut</i> but also for <i>milḥamot mizvah,</i> including war against the Seven Nations, despite the ongoing obligation to annihilate all members of the Seven Nations indigenous to the land of Canaan. This obligation is completely independent of the obligation to conquer the land of Canaan and to establish a Jewish homeland therein. The latter obligation may well be construed as contingent upon the advice and consent of the <i>urim ve-tumim</i> by virtue of its nature as a commandment whose fulfillment devolves upon the community as a whole. However, apart from a communal obligation to wage war against the Seven Nations, the commandment establishes an obligation devolving upon each individual that is personal in nature and, so long as the members of the Seven Nations were identifiable, was binding at all times and in all places.52<i class="footnote">See Rambam, <i>Hilkhot Melakhim</i> 5:4; and <i>Sefer ha-Ḥinnukh,</i> no. 525. See also above, note 10.</i> An individual was clearly not required to consult the <i>urim ve-tumim</i> prior to taking the life of a member of the Seven Nations. The obligation of society as an aggregate of its individual members is certainly in no way inferior to the obligation of an individual <i>qua</i> individual. Accordingly, the role of the <i>urim ve-tumim</i> in war against the Seven Nations is problematic. 
  In order properly to understand the consideration underlying the requirement of the <i>urim ve-tumim</i> as a necessary condition of halakhically sanctioned warfare, a somewhat extraneous matter which is nevertheless germane to this topic must be examined. The categories of <i>milḥemet mizvah</i> and <i>milḥemet reshut</i> pertain only to wars fought by Jews. Other than in the context of war, self-defense or execution of transgressors convicted of capital offenses, the taking of human life is forbidden to both Jew and gentile alike. Since, insofar as non-Jews are concerned, there are no biblically sanctioned modes of war analogous to war for the conquest of the land of Canaan or the war against Amalek, it might well be presumed that non-Jews may not legitimately engage in warfare other than for the strictly limited purpose of self-defense. Indeed, a number of eminent authorities, including R. Moses Sofer, <i>Teshuvot Hatam Sofer, Yoreh De'ah,</i> no. 19, R. Abraham Dov Kahana-Shapiro, <i>Dvar Avraham,</i> I, no. 11, and R. Menachem Ziemba, <i>Zera Avraham,</i> no. 24, adduce explicit talmudic authority in ruling that non-Jews are prohibited from engaging in war.53<i class="footnote">See <i>Contemporary Halakhic Problems</i>, II, 165.</i> Nevertheless, an opposing view is found in the writings of one noted authority.54<i class="footnote">A similar view, albeit not based on the same line of reasoning, is espoused by Maharal of Prague in his supercommentary on Rashi, <i>Gur Aryeh, Parshat Va-Yishlah, s.v. she-ha-umot.</i> In explaining the action taken by the sons of Jacob against the inhabitants of Shechem, Maharal states that the family of Jacob constituted a sovereign people and were permitted to do battle against another nation since war is not forbidden under the Noachide Code.</i> R. Naphtali Zevi Yehudah Berlin, in his commentary on the Bible, <i>Ha'amek Davar,</i> Genesis 9:5, finds justification for the view that the taking of human life in the course of war does not constitute culpable homicide.55<i class="footnote">This view is also expressed in <i>Ha’amek Davar,</i> Deuteronomy 20:8. See also <i>Amud ha-Yemini,</i> no. 16, chap. 5, secs. 8-24.</i> The verse "But your blood of your lives will I require; from the hand of every beast will I require it; and from the hand of man, from the hand of a person's brother, will I require the life of man" (Genesis 9:5) contains one phrase that is an apparent redundancy. The phrase, "from the hand of man … will I require the life of man" pronounces man culpable for the murder of his fellow. To what point, then, is it necessary for Scripture to reiterate "from the hand of a person's brother will I require the life of man?" Fratricide is certainly no less heinous a crime than ordinary homicide. <i>Ha'amek Davar</i> understands this phrase as placing a limitation upon the nature of culpable homicide. The taking of human life constitutes homicide only when the relationship between the parties is analogous to that which exists between a man and his brother, i.e., during periods in which harmony and brotherly love may be anticipated to reign between them. War, however, is the antithesis of brotherhood. Under such conditions, maintains <i>Ha'amek Davar,</i> there is no punishment for taking human life. Since this verse occurs in the context of the prohibition against homicide as it pertains to Noachides, <i>Ha'amek Davar</i> concludes that gentiles are not culpable for the taking of human life within the context of warfare. 
  As noted earlier, <i>Ha'amek Davar</i>'s position vis-a-vis the legitimacy of war on the part of non-Jews is contradicted by numerous authorities. Nevertheless, the verse cited by <i>Ha'amek Davar</i> might well be interpreted in a similar manner even by those authorities who maintain that non-Jews have no dispensation to engage in wars of aggression under any circumstances. According to those authorities, the biblical categories of war are limited to Jews exclusively. However, it is not illogical to interpret Genesis 9:5 as excluding from the halakhic prohibition against homicide the shedding of blood within the context of warfare provided that the war itself is legitimately undertaken, i.e., in situations in which the bonds of brotherhood have been severed in a manner sanctioned by Halakhah. In theory, such exclusion is all-inclusive in nature and pertains to any legitimate military activity, whether undertaken by Jew or by gentile. In practice, according to these authorities, the exclusion is applicable solely to Jews since it is established on other grounds that non-Jews may not legitimately engage in any war of aggression. The taking of any life when incidental to biblically sanctioned warfare does not constitute homicide because at such times the relationship between the parties is not analogous to the relationship between man and his brother. It is, however, logical to assume that military action leading to civilian casualties may be regarded as legitimate on this basis only when the loss of civilian life is incidental to military purposes, but not when wantonly undertaken as an end in itself.56<i class="footnote">See <i>Amud ha-Yemini,</i> no. 16, chap. 5, sec. 32.</i>
  Accordingly, it may be argued that the function of the <i>urim ve-tumim</i> is to generate a state of war which is the antithesis of a state in which relationships between peoples are analogous to those which exist between man and his brother. The latter relationship is the divinely mandated norm. Legitimate renunciation of that state requires divine sanction as manifest through the Divine Spirit utilizing the <i>urim ve-tumim</i> as a medium. Only in such a state may actions likely to produce civilian casualties be undertaken. In essence, the <i>urim ve-tumim</i> is required in order to legitimize military action that may cost the lives of innocent victims. 
  Each individual is indeed commanded to annihilate the members of the Seven Nations and the community as an aggregate of individuals is bound by a similar obligation. It is clearly not necessary to consult the <i>urim ve-tumim</i> prior to discharging that obligation in whole or in part. Permission of the <i>urim ve-tumim</i> is required solely in order to establish a state of war legitimating military action that may result in the death of innocent victims.
  However, since war "to deliver Israel from an enemy" is not preemptive but is undertaken only in response to hostile acts, the acquiescence of the <i>urim ve-tumim</i> is not required since such war is entirely defensive in nature. In such cases, the state of normalcy has already been shattered by the aggressor. The response, even if it involves the loss of innocent lives, is justified even without permission of the <i>urim ve-tumim</i> since it occurs in the absence of peaceful relations among nations. Hence, even though casualties among noncombatants may ensue, military activity is justified since the innocent victim's life is not taken by "the hand of his brother."
  VII
  As has been stated earlier, preemptive war is not sanctioned by Rambam as a form of <i>milḥemet mizvah.</i> Nor could preemptive war be sanctioned in our day as a <i>milḥemet reshut</i> since the necessary conditions for waging a <i>milḥemet reshut,</i> i.e., a monarch, Sanhedrin and <i>urim ve-tumim</i> are absent. Nevertheless, limited types of preemptive incursion may well be justified under the law of pursuit. "If [a person] comes to slay you, arise and slay him," counsels the Gemara (<i>Berakhot</i> 58a and 62b; <i>Sanhedrin</i> 72a). Such action is not only justified but is mandatory under the law of pursuit. However, as has been shown earlier, the conditions under which self-defense may be carried out are quite different from the manner in which war may be conducted. The taking of human life in self-defense is justified only when necessary in order to eliminate a threat that is virtually certain to result in loss of life and only to the limited extent necessary to neutralize the danger. Moreover, in contradistinction to action justified by regulations governing warfare, innocent lives may not be taken when sole justification for military action is the plea of self-defense. 
  Lest these conclusions be too hastily applied to the recent events in Lebanon several further points must be emphasized:
  (1) Action in response to an armed attack is not designated by Halakhah as preemptive even if designed solely to prevent future attack. Accordingly, aggression undertaken by the enemy serves to render any action taken in response a war "to deliver Israel from an enemy" which constitutes a <i>milḥemet mizvah.</i> There is no halakhic requirement that defensive war be limited to elimination of the immediate danger. The crucial issue, then, is whether such actions are entirely preventive in nature or whether a given action is undertaken in response to prior attack. Intermittent cessation of hostilities by the enemy does not signify termination of aggression.57<i class="footnote">See <i>Amud ha-Yemini,</i> no. 16, chap. 5, sec. 25.</i> On the other hand, the purpose of such war is not punishment of the enemy, but "to deliver Israel," i.e., prevention of Jewish casualties. Hence prudence would dictate that such action be undertaken only if casualties as a result of a military response are estimated as likely to be lower than anticipated losses in the absence of such response. 
  (2) Preemptive military action undertaken on the basis of the principle "If [a person] comes to slay you, arise and slay him" may well generate a counterattack. Response to the counterattack constitutes a war "to deliver Israel from the enemy" even though the initial attack could not be sanctioned on those grounds. Such resistance constitutes a situation in which "<i>kvar ba aleihem</i>—the enemy has already come upon them" and, accordingly, military response constitutes a war "to deliver Israel from an enemy." Hence, although the initial action must be limited to acts compatible with action under the law of pursuit and, for example, may not be directed against civilians, enemy response to action undertaken in accordance with the law of pursuit results in circumstances warranting a <i>milḥemet mizvah.</i> Once the enemy has actually "marched against them" further military activity is encompassed within the category of war "to deliver Israel from an enemy" and may be carried out in accordance with halakhic regulations governing the conduct of war. 
  (3) It must also be noted that in some circumstances a <i>milḥemet reshut,</i> once undertaken, may be governed by the regulations applying to a <i>milḥemet mizvah.</i> As noted earlier, Deuteronomy 20:5-7 provides for the deferment of military service for certain categories of men. These exclusions apply only to a <i>milḥemet reshut.</i> Hence, a king may not legitimately undertake a <i>milḥemet reshut</i> unless he is confident of victory without finding it necessary to conscript such persons. However, once a war is declared and the tide of battle threatens to overwhelm the Jewish forces committed to battle, the situation is entirely different, <i>Hazon Ish, Oraḥ Hayyim-Mo'ed</i> 114:2, quite logically asserts that once a battle has been undertaken and there is danger of losing the encounter, response to such danger constitutes a <i>milḥemet mizvah</i> and, accordingly, even those persons otherwise exempt from military service are obligated to participate if their services are necessary to achieve victory. The selfsame consideration would logically apply even in the case of a war whose inception was entirely illicit. The danger of defeat creates a situation requiring the "deliverance of Israel from an enemy" which constitutes a <i>milḥemet mizvah.</i>
  Of course, application of these halakhic principles in any given situation requires prior determination of the relevant facts. 
  VIII
  Centuries ago King Solomon wrote, "For everything there is a season, and a time for every object of desire under the heavens. … A time to be silent and a time to speak. A time to love and a time to hate. A time for war and a time for peace" (Ecclesiastes 3:1 and 3:7-8). Events of the summer of 1982 illuminate the juxtaposition of the last two verses. Indeed, there is a time to speak of war and of peace and a time when political and military considerations augur for silence. Unfortunately, the lesson that emanates from these biblical verses is not understood by all. 
  As has been shown, determination of the halakhic propriety of the Israeli incursion into Lebanon is contingent both upon accurate analysis of points of fact as well as resolution of questions of Jewish law. Nevertheless, it is beyond dispute—both as a matter of fact and as a matter of Halakhah—that, once hostilities have commenced, Israel must prevail because the State of Israel cannot afford the luxury of losing a war. Military defeat would assuredly entail the loss of a countless number of Jewish lives. When such threat looms, military action assumes the guise of an obligatory war "to deliver Israel from the enemy." Under such circumstances any action—indeed any word—that gives support to the enemy is an action that endangers Jewish lives and as such is categorically forbidden by Jewish law. 
  One final comment: The events of the summer of 1982, even though fraught with much pain, are nevertheless not without a redeeming feature. Song of Songs 4:8 declares, "Come with me from Lebanon, my bride, with me from Lebanon you shall come. You shall look <i>me-rosh amanah</i>…." Rashi explains the import of the opening words of this passage by stating that God declares to the children of Israel, "You will come <i>with Me</i> into exile from Lebanon and <i>with Me</i> from Lebanon you will return." The verse alludes to the route traveled by our ancestors as they departed from the Land of Israel. When sent into exile some were driven north through Lebanon.58<i class="footnote">Indeed, portions of Lebanon are within the biblically designated boundaries of the Land of Israel and, moreover, are part of the territories conquered by the generation of the Exodus. The fourteenth-century traveler and rabbinic authority, R. Estori ha-Farḥi, <i>Kaftor va-Feraḥ,</i> chapter 11, identifies <i>Hor ha-Har</i> specified in Numbers 34:7 as the northern boundary of <i>Ereẓ Yisra’el</i> with a particular mountain in the north of Lebanon and specifically enumerates Tyre, Sidon and Beirut as cities within the consecrated territory of <i>Ereẓ Yisra’el.</i></i> Scripture testifies that God will go into exile with Israel and together with Israel He will return from the exile. The verse continues, "You shall look <i>me-rosh amanah</i>." Rashi interprets this phrase as meaning "You shall perceive <i>me-rosh</i>—because from the beginning you exhibited <i>emunah."</i> Thus Rashi understands the verse as meaning, "You may anticipate the redemption because from the beginning of exile you manifested belief, faith and trust in God." From the very beginning of <i>galut</i> Israel marched into exile with <i>emunah,</i> with faith and trust that the exile would end. With this faith <i>a priori,</i> we are able to declare with certainty, "<i>Me-levanon tavoi</i>—From Lebanon you shall come."
  "The heart of a king is in the hand of God as the watercourses; whithersoever he wishes He turns it" (Proverbs 21:1). There are events in the lives of men that, irrespective of their morality or immorality, are nevertheless harnessed by God and utilized by Him as instruments of divine providence. Proverbs declares that acts of sovereign powers that pertain to the destiny of Israel are integral to God's providential guardianship of His people. Jews believe with enduring faith that a redemptive moment permeates all of Jewish history. "From Lebanon you shall come"—the events of the summer of 1982 in their entirety are but one more link in a long chain of events that will culminate in the complete redemption. May we be privileged to witness the redemption of Israel speedily in our day. 
  Said R. Yoḥanan: [A war which is designated as] permitted by the Sages is identical with [war which is designated as] commanded (<i>mizvah</i>) by R. Judah; [war which is designated as] commanded by the Sages is identical with [war which is designated as] obligatory (<i>ḥovah</i>) by R. Judah.
  Said Rava: All agree that the wars of Joshua to conquer [the land of Canaan] were obligatory [and] all agree that the wars of the House of David for territorial expansion were discretionary. They differ with regard to [wars for the purpose of] diminishing the heathens so that they shall not march against them. One [viz., R. Judah] calls it commanded and one [viz., the Sages] calls it permitted. The difference is with regard to [application of the principle that] one who is engaged in the performance of a commandment is exempt from the performance of [another] commandment. 
  And whosoever does battle with all his heart without fear and his intention is solely to sanctify the Name is assured that no harm will befall him and he will not meet with misfortune. He will build for himself a lasting house in Israel and he will acquire it for himself and for his children for eternity and he will merit life in the world to come as it is written, "For the Lord will surely make a sure house for my lord because my lord fights the battles of the Lord and evil is not found in you."
  
  Chapter XII Of Land, Peace and Divine Command
  
  <i>The Holy One, blessed be He, has many peoples; to the nations of the world He distributed fields and vineyards and to Israel He gave one orchard, i.e., the Land of Israel.</i>
  YALKUT SHIM'ONI, JEREMIAH 270
  Disturbances during these past months in the liberated territories of Judea and Samaria and in the Gaza Strip have given rise to considerable discussion and debate both within the State of Israel and in the Diaspora. The debate has centered around the issue of "land for peace," the return of territory taken during the Six-Day War as a means of achieving peaceful coexistence with the indigenous Arab population. The controversy concerning the impact of such a policy upon the security and aspirations of the State of Israel is mirrored in rabbinic circles in a debate centering upon the theological and halakhic ramifications of such policies. While the secular debate has taken place in public forums and in the media, and although strident pronouncements of some religious figures have received much publicity, reasoned halakhic disputations have, for the most part, been confined to the study halls of rabbinic scholars and their students. 
  There can be no question that every committed Jew awaits with eager anticipation the time when every particle of the sanctified soil of <i>Erez Yisra'el</i> will be under unchallenged Jewish sovereignty. Return of territory is a contingency contemplated only with pain and anguish. Only exigencies of security, stability and peace prompt an investigation of the position of Halakhah with regard to this agonizing issue. 
  Judaism is hardly monolithic. It is no more surprising to find disagreement in rabbinic circles with regard to the religious and halakhic aspects of the problem than it is to find disagreement in the political arena with regard to the impact of available options upon matters of national security. With regard to the latter a consensus is now in the process of emerging; with regard to the former, it seems to this writer, a consensus has long existed. Ralbag, in the course of his philosophical writings, employs a poignant phrase for widely held positions. He terms them the beliefs of "<i>hamon anshei Toratenu</i>," the beliefs of "the multitude of the adherents of our Torah." Although very little has appeared in print with regard to the stated position of Torah scholars, it is this writer's firm conviction that the material herein presented reflects the consensus of <i>"hamon ḥakhmei Toratenu</i>—the multitude of the scholars of our Torah," i.e., the views of the "silent majority" of authoritative rabbinic decisors. 
  There is considerable disagreement among rabbinic authorities with regard to whether or not the commandment concerning residence in the Land of Israel is binding in our day.1<i class="footnote">For a discussion of the various positions regarding that issue, see <i>Contemporary Halakhic Problems,</i> II, 189-211.</i> Letters ascribed to both R. Ya'akov of Lissa2<i class="footnote">Cited in R. Yosef Sheinberger, <i>Amud Esh</i> (Jerusalem, 5714), pp. 105-109. The authenticity of this letter was challenged by R. Shmuel ha-Kohen Weingarten in a detailed critique, “<i>Ziyyuf Sifruti,</i>” <i>Sinai,</i> XXXII (5713), nr. 1-2, pp. 122-127. The letter was originally published in <i>Ha-Posek,</i> nr. 140, at the behest of Chaim Bloch. Cf., Mayer Herskovics, <i>Maharaẓ Ḥayes: Toldot Rabbi Zevi Hirsch Hayes u-Mishnato</i> (Jerusalem, 5732), pp. 231-232.</i> and the <i>Hafez Hayyim</i>3<i class="footnote">Cited in 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> declare that our sole justification for remaining in the Diaspora is reliance upon the opinion of those authorities who maintain that, in our day, the obligation to live in the Land of Israel is no longer incumbent upon us. It may be argued that if establishment of domicile and of a Jewish homeland in the Land of Israel is not incumbent upon us, it then follows, <i>a fortiori,</i> that there is no obligation to engage in war either for the conquest of any portion of the Land of Israel or in order to retain sanctified territory that has come under the jurisdiction of the Jewish state. Conquest of territory would appear to be mandated as a means of facilitating settlement; in the absence of an obligation with regard to settlement, conquest would be devoid of purpose. If so, the question of the propriety of returning liberated territory in order to avoid bloodshed bears further analysis only if the opinion of those authorities who maintain that the obligation to establish residence in the Land of Israel remains in force is accepted as normative. Other considerations, some of which will be discussed later, are certainly set aside in face of danger. 
  This conclusion also flows from an examination of the biblical passages in which these obligations are expressed. The obligation mandating conquest and settlement of the Land of Israel is formulated in the verse "and you shall inherit the land and dwell therein" (Numbers 33:53). The authorities who fail to consider the command "and you shall dwell therein" as binding in our day certainly would not regard the antecedent admonition "and you shall inherit the land" as remaining in force. There might, however, be grounds to assume that if "and you shall dwell therein" remains a binding obligation, the commandment to conquer the territory couched in the phrase "and you shall inherit the land" remains a binding obligation as well. 
  This, however, proves not to be the case. The halakhic conditions that must be satisfied prior to engaging in a war of conquest are such that they cannot be fulfilled in the current historical epoch. War of conquest, including a <i>milḥemet mizvah</i> or "commanded" war, require a king who must initiate military activity, a Sanhedrin that must approve such action, and consultation of the <i>urim ve-tumim</i> for advice and consent. The absence of a monarch may not be a decisive factor since Ramban, who is the principal exponent of the position that residence in the Land of Israel remains obligatory, declares in a somewhat different context that the term "king" must be understood as connoting not only a royal monarch, but "a king, a judge, or whosoever has jurisdiction over the people,"4<i class="footnote">See Ramban, addenda to Rambam’s <i>Sefer ha-Miẓvot, Miẓvot lo ta’aseh,</i> no. 17. For a fuller discussion of this point, see <i>Contemporary Halakhic Problems,</i> II, 207, note 27.</i> i.e., the person or body exercising sovereignty over the nation. If so, absence of a scion of the Davidic dynasty would not vitiate either the prerogatives or the obligations recognized by Halakhah with regard to military endeavors. Some latter-day authorities have adopted the position that the need for approval of a Sanhedrin is limited to circumstances in which there is a need to employ the coercive powers of the judiciary for the purpose of raising an army by means of involuntary conscription.5<i class="footnote">See R. Judah Gershuni, <i>Torah she-be-‘al Peh,</i> XIII (5731), 149-150; <i>idem, Or ha-Mizraḥ,</i> Tevet 5731; and R. Saul Israeli, <i>Amud ha-Yemini,</i> no. 14 and no. 15, chap. 5, sec. 6.</i> When, however, voluntary enlistment satisfies military needs, approval of the Sanhedrin, according to these authorities, is not required. Nevertheless, consultation of the <i>urim ve-tumim</i> remains a <i>sine qua non</i> for any act of military aggression.6<i class="footnote">See Rambam, <i>Sefer ha-Miẓvot, shoresh</i> 14, and Ramban, addenda to <i>Sefer ha-Miẓvot, Miẓvot lo ta’aseh,</i> 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> Since, lamentably, we possess neither an <i>urim ve-tumim</i> nor a High Priest to don the <i>urim ve-tumim,</i> a war of aggression designed to effect the conquest of the Land of Israel, in whole or in part, is precluded. 
  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 trangression. 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" (Leviticus 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." <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.7<i class="footnote">Cf., R. Naphtali Zevi Yehudah Berlin, <i>Meromei Sadeh, Eruvin</i> 45a and <i>Kiddushin</i> 43a; and R. Yitzchak Ze’ev Soloveitchik, <i>Ḥiddushei Maran Riz ha-Levi al ha-Torah</i> (Jerusalem, 5723), <i>Parshat Beshallaḥ,</i> p. 32. These scholars quite appropriately note that, even in the absence of a <i>miẓvah,</i> considerations of endangerment of self or of others are set aside in time of war simply by virtue of the “laws of war,” i.e., the Torah’s very recognition and sanction of warfare constitutes dispensation for endangerment of lives in the conduct of war.R. Joshua Aaronberg, <i>Dvar Yehoshu’a,</i> II, no. 48, extends this position in stating that, since considerations of self-endangerment are set aside in the conduct of war, war may not be eschewed if avoidance of war would result in infraction of even a rabbinic prohibition. Thus, for example, the prohibition, <i>lo titen lahem ḥaniyah be-karka</i> may not be violated because of considerations of <i>pikuaḥ nefesh</i> since there exists the option of waging war in order to prevent non-Jewish occupation of land. This writer finds Rabbi Aaronberg’s thesis unconvincing. The Torah <i>permits</i> self-endangerment in a <i>milḥemet miẓvah</i>; nowhere is there the slightest hint that an otherwise non-obligatory war becomes obligatory when necessary to avoid suspension of any prohibition in the face of danger. On the contrary, the Gemara, <i>Gittin</i> 56a, indicates that a blemished animal might be accepted as a sacrificial offering because refusal would offend the authorities and result in danger to Jews. There is no suggestion that war, even if potentially successful, must be undertaken in order to avoid such transgression. Moreover, the Brisker <i>Rav,</i> in his above cited comment, explicitly writes that the commandment <i>haḥarem taḥarimem</i> (Deuteronomy 20:17), <i>qua miẓvah,</i> is suspended even in time of war.</i>
  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.8<i class="footnote">R. Joshua Aaronberg, <i>Shanah be-Shanah,</i> 5730, p. 140, cogently argues 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>
  Quite apart from the foregoing, the Gemara, <i>Ketubot</i> 111a, reports that, at the time of the destruction of the Temple, God called upon the people of Israel to swear a solemn oath not to attempt a return to the Land of Israel by means of forcible conquest. If the oath remains endowed with any halakhic import—and many, and probably most, rabbinic scholars maintain that it does9<i class="footnote">For a discussion of these oaths in rabbinic literature see <i>Contemporary Halakhic Problems</i>, I, 13-14.</i>—it certainly serves to prohibit any military campaign for the purpose of territorial aggrandizement. 
  It may, of course, be objected that these considerations apply only to the initiation of armed conflict for the purpose of capturing or liberating sanctified territory. The stipulations requiring a king, Sanhedrin and <i>urim ve-tumim</i> certainly do not pertain to defensive war undertaken for the purpose of preserving Jewish lives.10<i class="footnote">This point is amplified in Chapter XI of this book. See pp. above, 274f.</i> Neither, it may be argued, do they apply to military activity undertaken for the purpose of retaining territory already reconquered, particularly if the territory in question has been liberated by means that are consistent with the provisions of Jewish law. It should also be noted that it can—and has—been argued that surrender of territories is an infraction of the prohibition <i>"lo teḥanem"</i> (Deuteronomy 7:2), which, in talmudic exegesis, is rendered as <i>"lo titen lahem ḥaniyahn be-karka</i>—you shall not grant them permanent encampment."11<i class="footnote">See <i>Avodah Zarah</i> 19b.</i> This talmudic dictum is formulated in association with a prohibition against conveying real property within the boundaries of the Land of Israel to a non-Jew. Yet a literal application of the terminology in which that prohibition is formulated would render it applicable to any action that would tend permanently to confirm non-Jewish residence in the Land of Israel. Sale of real estate would thus be but one example of activity having that effect; obviously, transfer of political sovereignty would be even more instrumental in engendering permanence of non-Jewish residence.12<i class="footnote">See <i>Contemporary Halakhic Problems,</i> I, 27-32, and II, 212-220.</i>
  However, historical precedent clearly establishes that war for retention of territory or sovereignty is not halakhically mandated, or at least, is not always halakhically mandated. At the time of the destruction of the Temple, R. Yoḥanan ben Zakkai not only advocated total surrender in return for minimal concessions which might be exacted from the conquerors, but was prepared to flout the wishes of contemporary political leaders and to act singlehandedly in implementing his policies. It is unthinkable to suppose that R. Yoḥanan ben Zakkai acted contrary to Halakhah. The policies he advocated were clearly stamped with the imprimatur of Jewish values and tradition. It is only the analysis of the considerations upon which those policies were grounded that remains for our elucidation. 
  R. Yoḥanan ben Zakkai was undoubtedly motivated by a desire to preserve Jewish lives. Continued resistance and warfare would assuredly have evoked repressive measures and resultant loss of additional lives. Accordingly, he must have regarded any continuing obligation with regard to preservation of a Jewish homeland as suspended in face of danger. 
  This can be explained on the basis of a number of considerations and, although the considerations are multiple in nature, they are not exclusive of one another:
  1. The most facile explanation involves the earlier-formulated thesis that a <i>milḥemet mizvah</i> is not obligatory when it must be rationally regarded as doomed to failure. A war of conquest may be mandatory, but an exercise in military futility is not. By the same token, as noted earlier, an obligation to wage war implies an obligation to assume the risks associated with warfare; it does not entail a concomitant obligation to engage in suicide missions or to accept the risk of disproportionate casualties. War has its own conventions and its own canons of military logic—inappropriate as those conventions and that logic may be in other areas of human endeavor. There is no obligation to engage in warfare in circumstances in which war must be deemed irrational even by military standards. 
  2. An examination of Ramban's comments regarding the commandment "and you shall dwell therein" inescapably yields the conclusion that the obligation is double-faceted in nature. The obligation encompasses (1) a personal obligation to establish domicile in the Land of Israel and (2) a similar obligation that is communal, rather than individual or personal, in nature. According to Ramban, the latter aspect of the <i>mizvah</i> includes an obligation to conquer the land, to inhabit and cultivate the land in its entirety, and to assure that no part of that territory remains in the hands of gentile nations.13<i class="footnote">See Ramban, <i>Commentary on the Bible,</i> Numbers 33:53, and <i>idem,</i> addenda to Rambam’s <i>Sefer ha-Miẓvot, miẓvot aseh,</i> no. 4.</i> According to Ramban's formulation, the oath <i>"she-lo ya'alu be-ḥomah"</i> may well be reflective, not simply of the suspension of the obligation with regard to conquest, but indicative of the abrogation of all communal obligations with regard to the Land of Israel. Banishment from the Land of Israel is the fulfillment of the prognosticated punishment reflected in the verses "And you I will scatter among the nations" (Leviticus 26:33) and "… and you shall be plucked from off the land which you go there to possess. And the Lord will scatter you among all peoples from the end of the earth to the end of the earth" (Deuteronomy 28:63-64). But how can such a situation be reconciled with an ongoing obligation to dwell within the confines of the Land of Israel? The answer may well be that "you shall inherit the land" refers to the people of Israel as a communal entity, whereas "and you shall dwell therein" constitutes an admonition addressed to the individual. The community is in exile; hence there can be no communal obligation regarding the Land of Israel. The individual, however, remains fully bound by the personal obligation to "dwell therein." Accordingly, even after the dispersion of the community, the individual, if he is but capable of doing so, is duty-bound to establish residence in the Land of Israel. But since that obligation is incumbent upon a Jew only <i>qua</i> individual it does not extend to duties and responsibilities which, by their very nature, are not within the purview of the individual but which can be fulfilled only through the cooperative efforts of the community. 
  War, as a halakhic category, constitutes a <i>mattir,</i> or suspension, of the prohibition against the taking of any human life. In the absence of a legitimating category of mandated or permissible war, military action would, ostensibly, be prohibited by Jewish law.14<i class="footnote">For further elucidation of this point see above, pp. 275ff.</i> There exists, however, another category of Halakhah that is conceptually unrelated to the formal halakhic categories of war but which does have a distinct bearing upon the present situation. 
  To be sure, wars of self-defense are recognized by Halakhah, not only as permissible, but as mandatory in nature. Such military action is the sole form of warfare requiring neither a king, Sanhedrin nor <i>urim ve-tumim.</i> Nevertheless, self-defense on the part of an individual is justifiable on entirely different grounds. Self-defense is recognized by Jewish law as justifiable homicide. Not only is the taking of the life of an aggressor sanctioned when necessary to preserve one's own life but such action is obligatory. Moreover, unlike common law, Judaism regards such intervention as also mandatory in order to save the life of a third person who is putatively the innocent victim of an aggressor.15<i class="footnote">See Rambam, <i>Hilkhot Roẓeaḥ</i> 1:9.</i> There also are situations in which homicidal intent is imputed to a malevolent individual even in the absence of overt demonstration of murderous intent. The Bible declares, "If a thief be found breaking in and he be smitten so that he dies, there shall be no bloodguiltiness for him" (Exodus 22:1). The verse refers to a burglar who has designs only upon the property of his victim. Since he is not intent upon bloodshed, killing the perpetrator would consititute force that, under the circumstances, would appear to be entirely disproportionate. Yet the Gemara, <i>Sanhedrin</i> 72a, elucidates the biblical exoneration of the victim in his use of lethal force with the explanation, "It is to be presumed that a person [faced with loss] of his money does not restrain himself. This [perpetrator] says to himself, 'If I go [there], he will oppose me and not let me [steal his property]; if he opposes me, I will kill him.' "
  One crucial problem concerning extension of the "law of the pursuer" to a <i>ba ba-maḥteret,</i> or burglar, requires clarification. Certainly, the slaying of the burglar by the householder is an exculpable act. The <i>ḥazakah</i> or presumption that a person finding himself in such circumstances cannot restrain himself from defending his property is known to the perpetrator and hence generates an assumption that he is not merely a burglar but also a would-be murderer. Accordingly, the householder's act is, in actuality, an act of self-defense. It is, however, equally certain that were the burglar to be assured that the valuables he seeks would be surrendered without protest there would be no cause for a presumption of intended violence on his part. On the contrary, the presumption would be that the burglar would not engage in unnecessary force. The question, then, does not arise only <i>post factum</i> as a question concerning the householder's culpability. Rather, the question has its inception before the fact as a query with regard to the appropriate response of a calm and collected victim who is entirely capable of a reasoned, calculated response rather than an emotional reflexive reaction. Such a person will be quick to recognize that all danger to his life will dissipate if he surrenders his possessions without offering resistance. If he is emotionally capable of responding in such a manner, is he then not obligated to do so? At that moment, the burglar is not yet intent upon homicide. Since the householder can completely obviate the danger to his own life by deflecting the perpetrator in a different way, it would stand to reason that a lethal response is not warranted. If so, the householder in control of his emotions should be advised that he is duty-bound to surrender his possessions and, indeed, should he eliminate the aggressor instead, he will be culpable in the eyes of Heaven. 
  It is instructive to note that Rambam codifies the law concerning the <i>ba ba-maḥteret</i> in a manner significantly different from his codification of the general rule governing an aggressor. In <i>Hilkhot Rozeaḥ</i> 1:9, Rambam declares unequivocally, "This too is a negative commandment not to spare the life of the pursuer. …" The malevolent intent of the pursuer must be thwarted even at the cost of his life and failure to intervene constitutes a transgression. However, in <i>Hilkhot Geneivah</i> 9:3 and 9:9, Rambam employs entirely different language with regard to the <i>ba ba-maḥteret.</i> Regarding such a malfeasor, Rambam, <i>Hilkhot Geneivah</i> 9:3, declares, "Every person has permission to slay him" and in <i>Hilkhot Geneivah</i> 9:9 Rambam writes, "And why did the Torah permit the blood of a thief even though he comes with regard to property? Because it is presumed that if the householder will offer resistance and prevent him [from stealing], [the thief] will kill him. Thus this [person] who enters the house of his fellow to steal is as if he pursues his fellow to slay him." Rambam does indeed equate the burglar with the pursuer but fails to declare that elimination of the burglar is imperative upon pain of transgressing a biblical command. On the contrary, he speaks of the burglar's blood merely as being "permitted." The clear implication of those statements is that the decision to employ lethal force, even if necessary to do so in order to protect one's possessions, is a matter left to the victim's discretion. 
  The apparent contradiction between Rambam's general formulation of the law of the pursuer and his application of that law with regard to the <i>ba ba-maḥteret</i> dissipates with the recognition that once the perpetrator actually becomes an aggressor the victim is bound to invoke the law in defending himself but that, this provision of law notwithstanding, it is within the victim's discretion to create, or not to create, conditions that will render the burglar a pursuer. If the householder is prepared to surrender his valuables without resistance the burglar will have no cause to do him harm and hence the burglar cannot be considered a pursuer. Should, however, the victim offer resistance, it must be presumed that the burglar will resort to violence and hence he must be regarded as a pursuer. The householder has no discretion with regard to invoking the law of pursuit against one who is already a pursuer; his discretion is limited solely to creating circumstances that will render the burglar a pursuer. Although he makes no explicit statement to that effect, Rambam's failure to indicate that the householder ought not to offer resistance in order to avoid triggering the law of pursuit would appear to indicate that the householder is under no obligation to do so. Thus the presumption of resistance which, in turn, gives rise to the burglar's status as a pursuer is not dependent upon an uncontrollable instinct on the part of the victim. Rather, the victim is fully entitled to protect hearth and home as a matter of right and it is the presumption that he will exercise that right that gives rise to classification of the burglar as an aggressor.16<i class="footnote">See R. Shlomoh Zalman Auerbach, <i>Moriah,</i> Sivan-Tammuz 5731, pp. 19-25; reprinted in <i>idem, Minḥat Shlomoh</i> (Jerusalem, 5746), no. 7, sec. 2.</i>
  The same inference may be drawn from a comment of <i>Magen Avraham, Oraḥ Hayyim</i> 329:5. <i>Shulḥan Arukh, Oraḥ Hayyim</i> 329:7, cities authorities who maintain that, "in our day," defensive measures involving transgression of Sabbath restrictions may be initiated in response to an attack by non-Jews even if they are intent only upon plunder. The rationale is rather similar to, yet somewhat different from, the consideration that serves as the basis of the rule governing the <i>ba ba-maḥteret,</i> viz., given the general lawlessness prevalent "in our day," failure to allow the gentiles to do as they wish, even if they are not resisted by lethal force, will result in the shedding of blood. Therefore, according to these authorities, their aggression must always be regarded as involving danger to life. <i>Magen Avraham,</i> however qualifies that ruling and declares that it is applicable only when the attack is directed against a community but not when the attack is directed against an individual. In a multitude it may be anticipated that some persons will be incapable of restraint and hence the situation must be regarded as posing a threat to Jewish lives. However, declares <i>Magen Avraham,</i> the individual who is capable of self-restraint must be admonished to surrender his possessions rather than desecrate the Sabbath. 
  <i>Magen Avraham</i>'s comment appears to be limited to acts performed on the Sabbath. He does not draw a similar distinction with regard to a <i>ba ba-maḥteret,</i> i.e., he does not state that an individual capable of self-restraint dare not slay the burglar because, since he is emotionally and psychologically capable of handing over his valuables, the burglar does not constitute a threat to his life. Apparently, according to <i>Magen Avraham,</i> the moral analysis of the problem begins with the positing of a right to defend property. Once the property owner has determined to exercise that right, utilization of lethal force in wresting property from its rightful owner may be met with a response in kind and the property owner is under no obligation to surrender his possessions in order to avoid killing the perpetrator. The responsibility for avoiding the spilling of blood lies entirely with the perpetrator who can readily obviate all danger by desisting from his nefarious endeavor. However, although one has a right to protect property against burglars or brigands, one does not have a right to transgress the Sabbath in order to preserve property. Thus, if offered a choice, upon pain of death, of either handing over one's money or performing an act of Sabbath desecration, one is obligated to surrender one's possessions rather than violate Sabbath prohibitions. Similarly, when confronted on the Sabbath by a burglar or by marauding gentiles, one is not permitted to safeguard property by means of Sabbath desecration even though on a weekday it would be permissible to do so despite the virtual certainly of resultant bloodshed.17<i class="footnote">The statement of the Gemara, <i>Sanhedrin</i> 72b, declaring that there is no culpability attendant upon slaying the <i>ba ba-maḥteret“whether</i> on a weekday or on <i>Shabbat</i>” must be understood, according to <i>Magen Avraham,</i> as limited to a person incapable of controlling his response. See R. Shlomoh Zalman Auerbach, <i>Moriah,</i> pp. 23 and 25; and <i>idem, Minḥat Shlomoh,</i> no. 7, pp. 47 and 48.</i>
  Of course, the right to defend hearth and home should not be confused with an obligation to engage in such defense. Not every right must be exercised. Prudence would dictate that a rational person would not accept undue risk in preserving his property. A cautious person will eschew any significant risk to life. 
  The application of these principles to the current debate concerning "land for peace" is perfectly obvious. What is true for the individual is true for a community or a nation as an aggregate of individuals. There is no obligation to relinquish territory in return for freedom from the threat of continued aggression. There is no obligation to capitulate to force of arms. On the other hand, there is no duty to defend property interests in the face of danger to life. 
  At the same time, a prudent assessment of inherent risks requires that prospective concessions be examined with regard to any risks such concessions may portend for the future. Jewish law, as recorded in <i>Shulḥan Arukh, Oraḥ Hayyim</i> 329:6, provides for defense of "a city close to the border" on the Sabbath against occupation by the enemy even when the enemy seeks only "straw and hay" because security considerations designed to safeguard against future danger to Jewish lives require that border areas remain in Jewish hands. Applying the selfsame consideration to the current dilemma, it may well be the case that return of territory, the retention of which is essential for purposes of security, may only enhance the danger to the inhabitants of the State of Israel in any future conflict. Similarly, present concessions may not appease the enemy but, on the contrary, may whet his appetite and enhance his strategic capabilities in demanding surrender of additional territory. 
  The prudent householder, in determining whether or not to appease the demands of a burglar, must carefully weigh all salient factors and considerations. Ultimately, the decision to resist or not to resist is left to the discretion of the <i>ba'al ha-bayit</i> or householder. The same is true with regard to decisions made by a community or a nation. The "<i>ba'alei battim</i>," through their designated representatives, government officials and military commanders must carefully analyze all relevant military, political and economic consequences of the options available to them and exercise their discretion in the formulation of an appropriate response. Only those individuals are privy to all factors that must be considered in order to formulate policy in a prudent manner. Moreover, no outsider is entitled to make a decision of this nature on behalf of the householder; only the potential victim is entitled to determine whether or not be wishes to assume the attendant risks inherent in the situation in which he finds himself. 
  One caveat: A rational and prudent householder, upon weighing all considerations, may well, and indeed probably will, determine that should a burglar break into his home he will offer no resistance. However, it would be the height of irrationality and a gross lack of prudence on his part to post a notice to that effect on the front door of his home. With regard to this caveat as well, the implications in terms of policy formulation by the State of Israel are obvious. 
  
  Chapter XIII The Controversy Concerning the Israeli Census
  
  <i>Said the Holy One, blessed be He, ''In this world human beings were wont to count you, but in the world-to-come I will count you and no one [else] will be able to count you, as it is said, 'and the number of the children of Israel shall be as the sand of the sea which cannot be measured nor numbered.' "</i>
  YALKUT SHIM'ONI, KI TISSA 386
  The United States conducts a census each decade for the purpose of determining the population of the country and of its various geographic areas. Quite apart from the matter of reapportionment of congressional districts, the demographic information compiled in this manner is of highly significant value in economic planning. Other information elicited in the course of taking the national census provides valuable information regarding many facets of changing sociological conditions. Censuses are similarly undertaken by other countries for the selfsame reasons. There have been no indications that any sector of the Jewish community in the Diaspora has demurred with regard to participation in a national census. 
  Not so in the State of Israel. Newspaper accounts describing the census undertaken by the government of Israel in 5743 (1983)—the fourth since the establishment of the state of Israel—are replete with reports of refusal to participate on the part of certain groups within the Orthodox community and of rabbinic disagreement with regard to the permissibility of participation.
  The census of 5743 was, however, by no means the first occasion on which this matter received the attention of rabbinic scholars. The earliest item dealing with the question of a modern-day census appears to be a responsum written by R. Ben-Zion Uziel, <i>Mishpetei Uzi'el, Hoshen Mishpat, Inyanim Kellaliyim,</i> no. 2, reprinted in <i>Piskei Uzi'el</i> (Jerusalem, 5737), no. 40. That responsum, dated 4 Tammuz 5697, predates the establishment of the State of Israel and was written at a time when the census was apparently undertaken in a less formal manner by the national labor union and local authorities. Subsequent to the establishment of the State, on the occasion of the second census which was conducted in 5721, responsa dealing with the propriety of a census undertaken by a Jewish state were authored by a number of leading rabbinic scholars. Of these, the most significant are the responsa of R. Yechiel Ya'akov Weinberg, <i>Ha-Pardes,</i> Tammuz 5721, reprinted in <i>Seridei Esh,</i> II, no. 48, and of R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer,</i> VII, no. 3.1<i class="footnote">Other items which appeared at that time include: R. Joseph Kapaḥ, <i>Ha-Tzofeh,</i> 2 Tammuz 5721; R. Mordecai Yehudah Leib Zaks, <i>Ha-Torah ve-ha-Medinah,</i> vol. XI-XIII (5720-5722); R. Saul Israeli, <i>Shanah be-Shanah,</i> 5722, reprinted in <i>Amud ha-Yemini,</i> no 13; and N. B. Lerner, <i>Maḥanayim,</i> Sivan 5722. R. Menachem Kasher’s discussion, published in the addenda to <i>Torah Sheleimah,</i> (Jerusalem, 5724) was also occasioned by the census of 5721. At a much earlier time, an article by R. Shemaryahu Weinson analyzing the nature of King David’s transgression in counting the populace was published in <i>Knesset ha-Gedolah,</i> IV (Warsaw, 5651), 155-59.</i> Rabbi Weinberg found no objection to participation in the census, while Rabbi Waldenberg presented a lengthy discussion of the manifold aspects of the problem and expressed strong reservations with regard to its permissibility.
  Public controversy concerning the halakhic propriety of the Israeli census dates at least to the third census conducted in 5732. At that time, the then Chief Rabbi, Rabbi Isser Yehudah Unterman, issued a statement declaring the census to be permissible according to "the majority of the authorities." That statement has now been published in <i>Teḥumin,</i> IV (5743), 335. At the same time, however, formal prohibitions against participation in the census were issued by the <i>Bet Din</i> of the <i>Edah ha-Haredit,</i> headed by R. Yitzchak Ya'akov Weisz and by the Steipeler <i>Rav,</i> R. Ya'akov Kanievsky of Bnei Brak. The text of those pronouncements was published in <i>No'am,</i> XVI (5733), 89. Rabbi Kanievsky's <i>issur</i> of 5732 has been reissued by his son in conjunction with the 5743 census.2<i class="footnote">See <i>Ha-Tzofeh,</i> 15 Sivan 5743, p. 8, col. 1.</i> The <i>Edah Ha-Haredit</i> also reissued its original pronouncement in cautioning against participation in the most recent census.3<i class="footnote">See <i>Ha-Edah, Parshat Be-Ha‘ alotekha</i>, 5733.</i> The same volume of <i>No'am</i> contains two articles expressing a permissive view authored by Rabbis Nathan Zevi Friedman and Menachem Kasher. Rabbi Kasher's contribution is a reprint of material included in the addenda to his <i>Torah Sheleimah,</i> XI (Jerusalem, 5724), and also appears in his responsa collection, <i>Divrei Menaḥem,</i> I, no. 36.
  The halakhic problems attendant upon participation in a census received renewed attention in conjunction with the census of 5743. Of particular interest is a brief, annotated monograph bearing the title <i>Mispar Bnei Yisra'el</i> devoted to the laws of "counting the children of Israel," authored by Rabbi Joel Schwartz, <i>mashgiaḥ ruḥani</i> of Yeshiva Dvar Yerushalyim, and published by that institution. A valuable discussion of the sources is presented by Rabbi Menachem Friedman, Rosh Yeshivah of Kolel Hasidei Belz of Jerusalem, in <i>Ha-Maḥaneh ha-Haredi,</i> 28 Sivan 5743. The halakhic problems attendant upon participation in a census are also discussed by Rabbi Shlomoh Goren in a three-part article which appeared in the weekend edition of the Israeli newspaper <i>Ha-Tzofeh,</i> 29 Sivan, 6 Tammuz and 13 Tammuz 5743. Disclaiming responsibility for issuing a definitive ruling since he is no longer Chief Rabbi, Rabbi Goren fails to present an unequivocal conclusion, but formulates several arguments auguring against participation. A number of novel insights are advanced by Rabbi Chaim Kanievsky in a brief section devoted to a discussion of the census issue included in his recently published comprehensive work on the <i>mizvah</i> of <i>eglah arufah, Naḥal Eitan</i> (Bnei Brak, 5737), 6:10, sec. 7. Rabbi Chaim Kanievsky is the son of the Steipeler <i>Rav</i> and is a prolific author and recognized scholar in his own right. A valuable bibliography as well as description of the manner in which the present census was conducted is presented by R. Yochai Baruch Rudick, <i>Teḥumin,</i> IV (5743). Appended to that article are facsimiles of the census forms employed, the statement of Rabbi Unterman issued in 5732, a statement issued by R. Chaim Kanievsky in 5743 as well as a statement by the present Chief Rabbis of Israel.
  I. The Sources
  A prohibition against counting Jews is recorded by Rambam, <i>Hilkhot Temidim u-Musafim</i> 4:4; <i>Magen Avraham, Oraḥ Hayyim</i> 156:2; <i>Pri Hadash, Oraḥ Hayyim</i> 55:1; and <i>Kaf ha-Hayyim</i> 13:10. Various scriptural verses are cited as the basis of the prohibition.
  1. The source which suggests itself most readily is Exodus 30:12. Moses is commanded to count the children of Israel by collecting a half-shekel from each person in order "that there be no plague among them when you number them." Indeed, the Gemara, <i>Berakhot</i> 62b, depicts God as telling David, "Behold I will make you stumble over a matter which even school children know, namely, that which is written, 'When you take the sum of the children of Israel according to their number, then shall they give every man a ransom for his soul unto the Lord … [that there be no plague among them].' " Here the Gemara declares that even "school children" are aware of a prohibition expressed in Exodus 30:12.
  This verse also serves to explain that counting the people of Israel is prohibited because of an inherent danger, viz., the danger of plague attendant upon direct counting of individuals. Rashi explains that the rationale underlying the prohibition against census-taking is danger re-suiting from an "evil eye." This concept is explained by Rabbenu Baḥya, Exodus 30:12, as predicated upon the manner in which divine providence is manifest. Providence may extend to an individual either <i>qua</i> individual or as a member of a larger group. When providence is directed toward a group even an undeserving individual may receive benefits since judgment is made with regard to the preservation and well-being of the group as a whole. However, when providence is directed toward an individual <i>qua</i> individual only his personal actions and merit are considered in determining whether he is to be deemed worthy of divine guardianship. The counting of individuals, explains Rabbenu Baḥya, has the effect of singling out the individual counted in this manner for particular scrutiny. If he is found lacking in merit he may receive punishment for misdeeds which otherwise might escape scrutiny. By way of analogy, Rabbenu Baḥya draws attention to the words of the Shunammite woman. Elisha asked her, "What is to be done for thee? Wouldst thou be spoken for to the king or to the captain of the host?" And she answered, "I dwell among my own people" (II Kings 4:13). The Shunammite woman did not wish to be singled out for mention to the king or to the captain of the host. So long as she remained anonymous she had nothing to fear from them. She was fearful, however, that were Elisha to cause those individuals to focus their attention upon her, the result might be detrimental rather than beneficial.4<i class="footnote">See also Seforno, Exodus 30:12. Cf., however, Ralbag, Exodus 30:12, and <i>Akedat Yiẓḥak, Parshat Tazri’a, sha’ar</i> 61, as well as <i>Kli Yakar,</i> Exodus 30:12. For amplification of Rambam’s position regarding the “evil eye” see <i>Teshuvot ha-Rambam</i> (ed. Freimann), no. 260; <i>Migdal Oz, Hilkhot Shekhenim</i> 2:16; and <i>Bet Yosef, Ḥoshen Mishpat</i> 158. See also Me’iri, <i>Pesaḥim</i> 109b. Cf., Abarbanel’s commentary on Exodus 30:12 in which he offers a naturalistic explanation of the harm caused by the “evil eye.”</i>
  2. Yet, elsewhere, <i>Yoma</i> 22b, the Germara adduces entirely different sources in establishing a prohibition against a numerical survey of the Jewish population. R. Yitzchak declares that it is forbidden to count Israel "even for the purpose of a <i>mizvah</i>" and derives the prohibition from I Samuel 11:8. Prior to engaging in battle to defend his nation against Nahash the Ammonite, an encounter which clearly constituted a <i>milḥemet mizvah,</i> Saul found it necessary to have an accurate reckoning of the populace. Accordingly, "He counted them <i>be-vazek</i>." R. Yitzchak interprets this phrase, not as identifying the town or village in which the census was taken, viz., Bazek, but as indicating the means by which the count was ascertained. The word <i>"bazek"</i> is interpreted as denoting shards of pottery. Thus Scripture reports that each person delivered a shard of pottery to be counted by the census-takers. The inference drawn by R. Yitzchak is that this cumbersome method was necessary because direct counting is forbidden.
  In response to the objection that <i>"bazek"</i> may be a place name, the Gemara cites I Samuel 15:4, "and Saul summoned the people and numbered them by means of lambs (<i>tela'im</i>)." Standard biblical translations similarly render "<i>tela'im</i>" as a place name. <i>Tosafot Yeshanim, Yoma</i> 22b, and Redak, I Samuel 15:4, likewise indicate that such is the "simple meaning" of the verse. However, according to talmudic exegesis, prior to engaging in war against Amalek, Saul did not count the populace <i>at</i> a place known as Tela'im; rather he counted <i>by means of</i> lambs (<i>tela'im</i>). Rashi, I Samuel 15:4, following the interpretation of the Gemara, explains the verse as stating that Saul provided the populace with lambs which he then retrieved in taking the census.
  <i>Targum Yonatan</i> indicates that the census was undertaken by Saul in conjunction with the offering of the paschal sacrifice. A rough estimate of the populace was achieved by counting the number of paschal lambs offered. Noteworthy is the statement of the Gemara, <i>Pesaḥim</i> 64b:
  Our Rabbis taught: King Agrippa once wished to cast his eyes on the hosts of Israel [to ascertain their number.] Said he to the High Priest, "Cast your eyes upon the paschal sacrifices." [The High Priest] took a kidney from each [paschal sacrifice] and 600,000 pairs of kidneys were found there, twice as many as [ the number of] those who departed from Egypt, excluding those who were unclean and those who were on a distant journey; and there was not a single paschal sacrifice for which more than ten people had not registered; and they called it "The Passover of the dense throngs."
  A similar narrative is recorded by Josephus, <i>Wars of the Jews,</i> Book VI, chap. 9.5<i class="footnote">Rabbi Goren points out that an imprecise census may be permissible under all circumstances. If so; according to the interpretation of <i>Targum Yonatan,</i> derivation of a prohibition from this narrative is problematic. According to <i>Targum Yonatan,</i> Saul was able to achieve only a rough approximation of the populace counted. Following this line of interpretation, the Gemara must be understood as deriving the prohibition against census-taking from the verse “And he counted them by means of lambs” on the basis of the assumption that Saul was constrained to satisfy himself with an imprecise counting because of a prohibition against an accurate census.</i>
  3. In the same discussion, the Gemara, <i>Yoma</i> 22b, adduces yet another source for the prohibition against counting the populace. R. Eleazar derives a negative prohibition from Hosea 2:1 which he renders as "The number of the children of Israel shall be as the sand of the sea which <i>shall not</i> be measured nor numbered (<i>lo yimad ve-lo yisafer</i>)," rather than as "which <i>cannot</i> be measured nor numbered." R. Nachman bar Yitzchak finds that this verse establishes, not one, but two prohibitions, viz., "shall not be measured" and "shall not be numbered."6<i class="footnote">Cf., <i>Teshuvot Ḥavot Ya’ir</i>, no. 9.</i>
  Maharsha, in his commentary on <i>Yoma</i> 22b, questions why, in this discussion, the Gemara cites prophetic verses in establishing a prohibition and fails to rely upon Exodus 30:12 as does the Gemara in <i>Berakhot</i> 62b. Maharsha explains that Exodus 30:12 might be understood as requiring the contribution of a half-shekel for each person as "a ransom for his soul unto the Lord" because of the prior transgression incurred in serving the golden calf. However, absent such transgression, it might be presumed that a census poses no danger and hence is not prohibited.
  Addressing the same question, Rabbi Weinberg and Rabbi Waldenberg both suggest that citation of a verse from the prophetic writings is necessary in order to establish a prohibition against the taking of a census "even for purposes of a <i>mizvah</i>" since the pentateuchal verse does not necessarily encompass such contingencies.7<i class="footnote">R. Chaim Joseph David Azulai, <i>Petaḥ Einayim, Yoma</i> 22b; R. Yehudah Aryeh Leib Alter of Gur, <i>Sefat Emet, Yoma</i> 22b, and R. Yisrael Yehoshua of Kutna, <i>Yeshu’ot Malko, Likkutei Torah,</i> p. 74b, suggest that, in context, Exodus 30:12 refers only to a census of the entire populace. Accordingly, <i>Yoma</i> 22b adduces verses from prophetic sources in establishing a prohibition against counting even a portion of the populace. Cf., however, <i>Ḥiddushei Ḥatam Sofer, Yoma</i> 22b, cited below. See also <i>Ẓiẓ Eli’ezer,</i> VII, no. 3, sec. 11, who suggests that other more explicit verses are required because Exodus 30:12 might be interpreted as forbidding a census only when undertaken by a “king or leader of Israel.” Indeed <i>Midrash Talpiyot,</i> no. 20, cites an opinion to the effect that “a ransom is required only when the census is undertaken by a king.It should however be noted that Rambam, <i>Hilkhot Temidim u-Musafim</i> 4:4, cites only the reference to I Samuel 15:4 discussed in <i>Yoma</i> 22b and omits any reference to Exodus 30:12 as a source for such a prohibition. Unlike <i>Berakhot</i> 62b, <i>Yoma</i> 22b may have regarded Exodus 30:12 as referring only to the census undertaken in the wilderness, but not as establishing a prohibition for posterity. If so, the prohibition against counting would be regarded by Rambam as binding solely by virtue of prophetic tradition (<i>mei-divrei kabbalah</i>) rather than as expressly biblical in nature. See <i>Mispar Bnei Yisra’el,</i> p. 19f; cf., however, <i>Seridei Esh,</i> II, no. 48, and <i>Ẓiẓ Eli’ezer,</i> VII, no. 3, sec. 1. It is, however difficult to sustain any explanation which posits a conflict between <i>Berakhot</i> 62b and <i>Yoma</i> 22. In <i>Berakhot</i> it is R. Eleazar who cites Exodus 30:12 as the source of the prohibition and it is also R. Eleazar who is quoted in <i>Yoma</i> as establishing the prohibition on the basis of Hosea 2:1.</i> A similar explanation is advanced by <i>lyun Ya'akov</i> and <i>Ez Yosef</i> in their respective commentaries on <i>Ein Ya'akov, Yoma</i> 22b.8<i class="footnote">See also <i>Tosafot Ri ha-Lavan, Yoma</i> 22b; cf. <i>Be’er Sheva, Tamid</i> 28a.</i>
  4. Rashi, I Chronicles 27:24, seemingly ignoring the sources cited in both <i>Berakhot</i> 62b and <i>Yoma</i> 22b, posits two entirely different verses as sources for this prohibition. The passages "If a man can number the dust of the earth, then shall your seed also be numbered" (Genesis 13:16) and " 'Look now toward heaven and count the stars if you are able to count them'; and he said unto him, 'So shall your seed be' " (Genesis 15:5) are interpreted by Rashi, not simply as blessings, but as prohibitions against counting the progency of Abraham. In his commentary on I Samuel 15:4, Rashi cites yet a third verse, "I will surely do you good and make your seed as the sand of the sea which cannot be numbered for multitude" (Genesis 32:13) which he renders as "which <i>shall not</i> be numbered for multitide.9<i class="footnote">Cf., <i>Meshekh Ḥokhmah, Parshat Naso, s.v. be-haftorah</i>.</i>
  According to Rashi, who views the verses in Genesis as establishing a prohibition against counting the population of Israel, it may perhaps be presumed that the Gemara, <i>Yoma</i> 22b, adduces prophetic verses because the verses in Genesis refer only to the counting of all members of the community of Israel. The prohibition established on the basis of the prophetic verses cited in <i>Yoma</i> 22b, however, clearly applies to the counting of even a segment of the populace. Thus, Scripture records that when Saul took the census prior to his battle against Ammon "The children of Israel were 300,000, and the men of Judah 30,000" (I Samuel 11:8); later, prior to the war against Amalek, Saul counted "200,000 footmen and 10,000 men of Judah" (I Samuel 15:4). The small numbers recorded, as well as the discrepancy between the figures, clearly indicate that the potential warriors counted by Saul constituted only a portion of the populace. Moreover, the Gemara, <i>Yoma</i> 22b, declares that, in the Temple, each priest extended a finger to be counted because it is forbidden to count people.10<i class="footnote">Cf., however, Rambam’s novel interpretation recorded in <i>Hilkhot Temedim u-Musafim</i> 4:3.</i> The counting of only the priests in the Temple certainly would not have constituted a census of the entire people. Nevertheless, it was permitted to count only outstretched fingers but not the priests themselves.11<i class="footnote">R. Meir Dan Plocki, <i>Klei Ḥemdah, Parshat Ki Tissa,</i> explains that although it is forbidden to count individuals directly, the counting of fingers is deemed a permissible form of indirect counting. Translated literally, Exodus 30:12 states “when you count the <i>head</i> of the children of Israel …” The prohibition, explains <i>Klei Ḥemdah,</i> is understood as applying only to the counting of “heads” or of “organs” upon which life is dependent. A similar explanation is advanced by the author of <i>Pe’at ha-Shulḥan</i> and rebutted by <i>Ḥatam Sofer, Koveẓ She’elot u-Teshuvot</i> (Jerusalem, 5733), no 8. Cf., Abarbanel, Exodus 30:12.</i> Thus, according to this analysis, the direct counting of even a portion of the populace is forbidden.12<i class="footnote">As noted earlier <i>Petaḥ Einayim, Sefat Emet</i> and <i>Yeshu’ot Malko</i> independently explain that, in establishing a prohibition against the direct counting of the populace, the Gemara cites the verse describing the census taken by Saul rather than Exodus 30:12 because the latter passage serves to prohibit only the counting of the entire populace while the prophetic verses serve to prohibit the counting of even a portion of the populace.</i>
  Curiously, the sources which serve to prohibit even a partial census were apparently overlooked by one biblical commentator. R. Elijah Mizraḥi, in his supercommentary on Rashi, Exodus 30:12, expressed the opinion that "perhaps" the prohibition against counting the populace is operative only if the entire people, or the major portion of the populace, is counted, as was the case with regard to the census undertaken by Moses in the wilderness. For this reason, opines Mizraḥi, there were no untoward results when David took a census prior to engaging in battle against Absalom and his company (II Samuel 18:1-2). On that occasion David divided the people into three groups and assigned Joab, Abishai the son of Zeruiah and Ittai the Gittite to conduct the census, charging each with counting one-third of the populace. Thus, there was no single census of the entire people. Subsequent writers have pointed out that Mizraḥi's position is contradicted by the Gemara's statement declaring that it was forbidden to count the priests in the Temple. Indeed, Mizraḥi's view also seems to be contradicted by the Gemara's analysis of the census conducted by Saul. Even though only a segment of the nation was included in that census, Saul found it necessary to count the populace by means of shards and lambs in order to circumvent the prohibition.13<i class="footnote">Cf., <i>Petaḥ Einayim, Yoma</i> 22b. For a summary of various attempts to reconcile Mizraḥi’s comments with these sources see <i>Ẓiẓ Eli’ezer,</i> VII, no. 3, secs. 35-37.</i>
  II. King David's Error
  Particularly perplexing is the fact that King David apparently ignored the prohibition against counting the populace despite the protestations of Joab (II Samuel 24:1-4 and Chronicles 21:1-3) who demanded, "Why does my lord require this thing? Why will he be a cause to trespass to Israel?" (I Chronicles 21:3). Joab was indeed correct in opposing the undertaking of a census as indicated by Scripture: "And God was displeased with this thing; therefore He smote Israel" (I Chronicles 21:7); "So the Lord sent a pestilence upon Israel from the morning even to the time appointed; and there died of the people from Dan to Beersheba 70,000 men" (II Samuel 24:15). David himself conceded his guilt saying, "I have sinned greatly in what I have done … for I have done very foolishly" (II Samuel 24:10; and, with minor variation, I Chronicles 21:8).14<i class="footnote">Cf., however, Abarbanel, Exodus 30:12, who maintains that the misfortune which was visited upon the populace following David’s census was a punishment for their treasonous conduct in supporting Sheba ben Bichri. Abarbanel’s interpretation appears to be at variance with both <i>Berakhot</i> 62b and <i>Yoma</i> 22b as well as contrary to the plain meaning of these scriptural verses. See R. Ben-Zion Uziel, <i>Mishpetei Uzi’el, Inyamin Kellaliyim,</i> no. 2.</i> Biblical commentators have advanced a variety of theses explaining the nature of David's error. A number of halakhic ramifications flow from those diverse explanations.
  1. Ramban, in his commentary on Exodus 30:12, explains that David did not properly understand the nature of the prohibition and endeavors to elucidate the nature of David's error. Ramban notes that Exodus 30:12 fails to specify whether the prohibition against counting the people is binding in all generations or whether it was intended to apply only during the period of wandering in the wilderness. According to Ramban, David erred in assuming that the prohibition lapsed upon entry into the promised land.15<i class="footnote">Maharal of Prague, <i>Gur Aryeh,</i> Exodus 30:12, explains that David erred in assuming that danger of an “evil eye” existed only in the wilderness where all of Israel was assembled in one location. <i>Ben Yehoyada, Berakhot</i> 62b, asserts that David erred in assuming that the prohibition pertained only to a census conducted in the wilderness which was a place of danger, but not in the Land of Israel where the merit of residence in the land protects against danger. <i>Kli Yakar,</i> Exodus 30:12, opines that David’s error lay in assuming that only the first census, which was undertaken when population figures were entirely unknown, required collection of half-shekels; however, subsequent counting, when the numbers were known at least in an approximate manner, in David’s opinion did not require collection of half-shekels, Cf., however, <i>Ẓiẓ Eli’ezer,</i> VII, no. 3, sec. 53, and <i>Mispar Bnei Yisra’el,</i> p. 31, note 11, and p. 36, note 1.</i> Ramban thus clearly understands David's census as having been undertaken in a direct manner and not by means of counting half-shekels or the like. This is certainly the interpretation placed upon the incident by the Gemara, <i>Berakhot</i> 62b. According to Ramban, only a direct census is forbidden; indirect counting by means of half-shekels or a similar expedient is permitted.16<i class="footnote">As will be noted below, R. Chaim ibn Attar, <i>Or ha-Ḥayyim,</i> Exodus 30:12, permits indirect census-taking in the absence of a legitimate “purpose” only by means of collecting half-shekels. Cf., <i>Koveẓ She’elot u-Teshuvot Ḥatam Sofer,</i> no. 8. <i>Ẓiẓ Eli’ezer,</i> VII, no. 3, sec, 22. suggests that according to <i>Or ha-Ḥayyim</i> who permits census-taking only by means of collecting half-shekels, such a procedure may be permissible only when the half-shekels are delivered to the Temple treasury.R. Jacob Zevi Mecklenburg, <i>Ha-Ketav ve-ha-Kabbalah,</i> Exodus 30:12, advances a novel view in stating that a portion of the populace may be counted indirectly by means of pieces of shard, or lambs, or the like. However, in his opinion, the entire populace may never be counted, even indirectly, other than by means of half-shekels which serve as a “ransom.”</i> This is also the position of Rambam, <i>Hilkhot Temidim u-Musafim</i> 4:4.17<i class="footnote">This interpretation is also reflected in the comments of the <i>Zohar, Parshat Pekudei,</i> p. 225b. Cf., <i>Ẓeidah la-Derekh,</i> Exodus 30:12.</i>
  2. However, in a subsequent comment, Ramban contradicts his own earlier interpretation. In his commentary on Numbers 1:3 Ramban remarks, "To me it [appears] unlikely that David should not be careful with regard to that which Scripture states, 'that there be no plague among them when you number them.' If perhaps David did err why did Joab not do [the census by means of] shekels … so that he should not sin?" Ramban proceeds to explain that a census such as was undertaken by David is forbidden even when conducted by means of counting half-shekels since it was unnecessary and not designed to serve a valid need or "purpose" (<i>zorekh</i>). David's census, asserts Ramban, was not designed to serve a military purpose or any other national need. That census, he declares, was undertaken by David simply in order to "gladden his heart" by demonstrating that he reigned over a large populace. In support of this thesis Ramban cites <i>Bemidbar Rabbah</i> 2:17:
  Whenever Israel was counted for a purpose, their number did not diminish; but when they were counted for no purpose, they became diminished. When were they counted for a purpose? In the days of Moses and for the [setting up of the] standards and at the division of the land. [When were they counted] for no purpose? In the days of David.
  Similar statements appear in <i>Pesikta Rabbati</i> 11:3, <i>Pesikta de-Rav Kahana</i> 2:17 and <i>Midrash Tanḥuma, Parshat Ki Tissa</i>, sec. 9.
  It is clear that even a census undertaken for a "purpose" is permitted only if taken indirectly by means of half-shekels or the like. The counting of the priests in the Temple was clearly necessary in order to determine which priests were to perform the sacrificial ritual. A number was arbitrarily selected and the priests were counted seriatim until the previously announced number was reached. The priest with whom the enumeration culminated was assigned a role in the sacrificial service. This procedure was designed to assign priests to their tasks in an orderly manner and to prevent jeopardy to life and limb such as had existed at an earlier time when the priests were themselves permitted to seize the initiative for participation. Although the numbering of the priests was conducted for a "purpose," the counting was of outstretched forefingers rather than of people.18<i class="footnote">Rabbi Friedman, <i>No’am</i> XVI, 87, errs in stating that, according to Ramban, a direct counting of the populace is permitted when undertaken for a “purpose.”</i>
  This is also the position of <i>Tosafot Rid, Yoma</i> 22b; Redak, I Samuel 15:4 and II Samuel 24:1; and <i>Tosafot Ri ha-Lavan, Yoma</i> 22b. It should however be noted that <i>Tosafot Rid</i> and <i>Tosafot Ri ha-Lavan</i> speak of indirect counting being permitted for the "purpose of a <i>mizvah</i>" rather than simply for any "purpose." Similarly, R. Naphtali Zevi Yehudah Berlin, <i>Meromei Sadeh, Berakhot</i> 62a, stipulates that the counting must be for the purpose of a <i>mizvah.</i>19<i class="footnote">Cf., however, R. Chaim Kanievsky, <i>Naḥal Eitan</i> 6:10, sec. 7, who understands the concept of counting for the purpose of a <i>miẓvah</i> formulated by <i>Tosafot Ri ha-Lavan</i> as permitting even indirect counting only upon specific divine command, rather than for the purpose of enabling the fulfillment of some other commandment.</i> A similar position is advanced by <i>Petaḥ Einayim, Yoma</i> 22b, in the name of R. Menachem Azariah of Panu. On the other hand, R. Chaim ibn Attar, <i>Or ha-Hayyim,</i> Exodus 30:12, permits the indirect counting of even the entire populace by means of half-shekels despite the absence of a legitimate "purpose."
  Parenthetically, it is significant that in these comments Ramban speaks of a prohibition devolving upon the census-taker. Joab is described as being troubled because he would incur transgression by virtue of taking a census. Although Ramban is silent with regard to a transgression on the part of those who are counted, it is clear that the danger of epidemic (or, according to <i>Hizkuni,</i> Numbers 31:49, the danger of being killed in battle) clearly devolves upon those who are counted. However, <i>Sefer Hasidim</i> (Frankfurt am Main, 1924), no. 1411, adopts a contrary position. According to <i>Sefer Hasidim,</i> the prohibition devolves only upon those who are counted, but not upon the census-taker. It may also be noted that <i>Yalkut Shim'oni,</i> II Samuel 24, records that God's anger was aroused against Israel at the time of Joab's census because the populace did not resist Joab in his endeavor.
  3. Advancing an alternative explanation in his comments on Numbers 1:3, Ramban declares that the entire populace may not be counted even by indirect means. Therefore, even when undertaken by means of counting half-shekels, a census may include only those twenty years of age and older.20<i class="footnote">See also Maharit, <i>Ẓafnat Pa’aneaḥ, Parshat Ki Tissa, derush</i> 1, and <i>Naḥal Eitan</i> 6:10, sec. 7.</i> David, however, commanded that all above the age of thirteen be counted. Such a census yields a population count of the entire people which is forbidden under all circumstances.21<i class="footnote">Surprisingly, Rabbi Goren fails to cite Ramban’s comments in this regard but does indicate that Rashi, in citing the various verses in Genesis rather than those adduced in <i>Berakhot</i> 62b and <i>Yoma</i> 22b, intended to establish the basis for a prohibition against counting the <i>entire</i> populace.</i> According to this explanation, David erred in assuming that a census of the entire populace, including even those under twenty years of age, is permitted when undertaken in an indirect manner.
  Ramban further cites a "<i>midrash aggadah</i>"—presumably a reference to the earlier cited aggadic statement recorded in <i>Berakhot</i> 62b—which explains that David sinned in taking the census directly rather than by means of half-shekels. Thus the diverse explanations advanced by Ramban in his commentary on Numbers 1:3 reflect different strands of midrashic interpretation.22<i class="footnote">See, however, <i>Meromei Sadeh, Berakhot</i> 62b, and <i>Ẓiẓ Eli’ezer,</i> VII, no. 3, sec. 15, who resolve the apparent contradiction between the two aggadic sources by suggesting that <i>Berakhot</i> 62b ascribes a two-fold error to David: census-taking in the absence of a legitimate purpose which was compounded by failure to collect half-shekels. Cf., however, <i>Tosafot Rid, Yoma</i> 22b, who remarks that Joab did not require the collection of half-shekels because the census was not undertaken for a legitimate purpose and, accordingly, collection of half-shekels would not have mitigated the transgression.</i>
  4. R. Mordecai Jaffe, <i>Levush ha-Orah,</i> and Mizraḥi, in their respective commentaries on Exodus 30:12, explain that King David erred in assuming that this verse does not establish a prohibition against census-taking. According to this interpretation, David understood Exodus 30:12 as requiring a half-shekel simply as a "ransom" to avert a calamity and, assuming that the "ransom" need not necessarily be delivered prior to the census but could be paid after the counting as well, intended to collect such an offering subsequent to completing the census.23<i class="footnote">R Yeruchem Fischel Perla (Marhari Perla), in his commentary on Sa’adia Ga’on’s <i>Sefer ha-Miẓvot, miẓvot lo-ta’aseh,</i> nos. 264-65, p. 322b, opines that, in the event that a person has been counted, he must contribute a half-shekel to charity as “ransom.” <i>Ẓiẓ Eli’ezer,</i> VII, no. 3, sec. 16, suggests that, according to Marhari Perla, any coin minted as a half of the monetary unit which constitutes the coin of the realm may be sufficient for this purpose even if its value is less than that of half a shekel. However, <i>Ẓiẓ Eli’ezer</i> fails to offer compelling evidence in support of this contention.</i> Maharal of Prague, <i>Gur Aryeh,</i> Exodus 30:12, advances a similar explanation but comments that David believed that the half-shekel donated annually by each person for the purpose of purchasing communal offerings was sufficient to serve as "ransom." <i>Levush</i> further comments that the true import of the commandment was not known until after the misfortune which occurred following David's census.
  The basic notion advanced by <i>Levush</i> and Mizraḥi, viz., that the giving of a "ransom" need not be simultaneous with the taking of the census, is found in the comments of an early authority. Rashbam, Numbers 31:49, speaks of an offering subsequent to the taking of the census as serving as a form of "ransom."
  Parenthetically, it should be noted that <i>Levush,</i> Mizraḥi, Maharal and Rashbam apparently maintain that the collection of half-shekels serves to permit a direct head count of the populace. Such a position is entirely compatible with a literal reading of Exodus 30:12 and Numbers 1:2. Similary, <i>Yalkut Shim'oni, Parshat Ki Tissa,</i> speaks of individuals passing beyond a wooden platform, presumably for purposes of being counted directly. However, Rashi, Exodus 30:12, carefully explains that the collection of half-shekels was designed to enable the census to be taken indirectly by means of counting the half-shekel coins rather than by a direct count of individuals. According to Rashi, direct counting of people is never permissible.
  III. Hatam Sofer's Position
  R. Moses Sofer, in a responsum published only in recent years, <i>Kovez She'elot u-Teshuvot Hatam Sofer</i> (Jerusalem 5733), no. 8,24<i class="footnote">This responsum, together with the query and subsequent response of his interlocutor, R. Yisra’el of Shklov, the author of <i>Pe’at ha-Shulḥan,</i> was first published in <i>Sefer ha-Yovel le-Doktor B. M. Levin</i> (Jerusalem, 5700), ed. R. Yehudah Leib Fishman.</i> a significant portion of which is also included in his talmudic novellae, <i>Hiddushei Hatam Sofer, Yoma</i> 22b, adopts a position which, while incorporating elements found in Ramban's exposition, is at variance with that of other authorities. As noted earlier, Ramban, in one explanation, asserts that a direct census which is accurate and precise in nature is forbidden even if limited to a portion of the populace. The expedient of indirect counting is employed, according to <i>Hatam Sofer,</i> not because indirect counting is intrinsically permissible, but simply because indirect counting admits of error and is, by its very nature, not precise. Although each person, rich or poor, is commanded to contribute a half-shekel, no more and no less, there is no guarantee that the directive will be adhered to scrupulously. Imprecision is also likely to result when the census is taken by counting lambs or bits of pottery. Similarly, in counting the forefingers extended by the priests, it is possible that error will occur because some may not extend a forefinger and some may extend a multiple number of fingers. According to <i>Hatam Sofer,</i> it is precisely because the true number will not be known with certainty that the taking of a census by indirect means is permitted.
  The counting of people, even of a portion of populace, in a manner that is not designed to yield an accurate reckoning, asserts <i>Hatam Sofer,</i> may be undertaken only by means of half-shekels which serve as "ransom."25<i class="footnote">Cf., <i>Or ha-Ḥayyim, and Ha-Ketav ve-ha-Kabbalah</i>, cited above, note 16.It should be noted that in his concluding remarks <i>Ḥatam Sofer</i> states that counting by means of half-shekels or by way of <i>goral is</i> permitted only for the purpose of a <i>miẓvah.</i></i> The extension of fingers by the priests, even though it was not accompanied by collection of half-shekels, asserts <i>Hatam Sofer,</i> was permitted because it was not done as a means of counting the priests but by way of <i>goral,</i> or lot, in order to assign roles in the performance of the sacrificial ritual. The procedure began with the announcement of an arbitrarily selected number. Thereupon, the outstretched fingers were counted seriatim until the previously announced number was reached. The number announced prior to counting the fingers extended by the priests might indeed be greater than the total number of individuals present. This would require that at least some priests be counted more than once. Thus the intention was clearly not to obtain a census in any sense of the term. In a highly novel explanation, <i>Hatam Sofer</i> asserts that the shards and lambs collected by Saul were similarly designed, not to establish a census, but as a device by which to assign various roles in combat. Since the procedure was in the nature of a <i>goral,</i> rather than of a census, half-shekels were not required. It would appear that, according to the opinion of <i>Hatam Sofer</i> as expressed in this responsum, a contemporary census, even if undertaken in an indirect manner (and even if it be imprecise in nature) is not permissible since it is not accompanied by the contribution of a half-shekel. On the other hand, the author of <i>Pe'at ha-Shulḥan,</i> as quoted in <i>Kovez Teshuvot Hatam Sofer,</i> as well as <i>Kiel Hemdah</i> and <i>Pardes Yosef</i> in their respective commentaries on Exodus 30:12, permit the counting of nonvital organs or of items of clothing as constituting indirect forms of census-taking.
  IV. Contemporary Factors and Rulings
  Rabbi Weinberg, <i>Seridei Esh,</i> II, no. 48, finds that a census undertaken in Israel under contemporary conditions is permitted because such a census is conducted by means of questionnaires which are filled out by individual householders. The names inserted in the blank spaces provided on the forms are then tabulated in order to reach a final count. The tallying of names, rules Rabbi Weinberg, is an indirect means of counting. He further contends that the considerations of economic planning and national security which require an accurate census suffice to constitute a "purpose." Accordingly, Rabbi Weinberg concludes that the taking of a census is permitted even according to the first analysis presented by Ramban in his commentary on Numbers 1:3. Rabbi Uziel, <i>Mishpetei Uzi'el, Hoshen Mishpat, kelalim,</i> no. 2, also permits the taking of a census on the grounds that it is conducted indirectly by means of written documents and is undertaken for a legitimate purpose. This is also the opinion of both Rabbi Friedman and Rabbi Kasher.26<i class="footnote">See also <i>Einayim la-Mishpat, millu’im</i>, Berakhot 62b.</i> Rabbi Kasher adds further support to this conclusion by citing the comments of Ralbag, Numbers 1:2 and Numbers 26:53, who declares categorically that the counting of written names is not encompassed within the prohibition. Contradicting the view of other biblical commentators, Ralbag states that the later censuses undertaken by Moses were not conducted by means of collection of half-shekels but "according to the number of names" as indicated in Numbers 1:2 and Numbers 26:53.27<i class="footnote">Rabbi Kasher, <i>Torah Sheleimah,</i> XXI, 168, further contends that tabulation by mechanical means is not prohibited since the actual counting is not accomplished by a human act. This view is disputed by Rabbi Schwartz, <i>Mispar Bnei Yisra’el,</i> p. 29.</i> It should be noted that R. Naphtali Zevi Yehudah Berlin, in his biblical commentary <i>Ha'amek Davar,</i> also interprets both verses in an identical manner.28<i class="footnote">In his commentary on Numbers 1:42, <i>Ha’amek Davar</i> cites an intriguing oral tradition attributed to the <i>Ari ha-Kadosh. Ari</i> advances a resolution to a textual difficulty in which he clearly assumes that those censuses were undertaken by counting slips of paper or the like upon which the names and tribal identification were recorded. <i>Ari ha-Kadosh</i> explains that these slips were collected from the entire community of Israel and deposited in a single place. Thereupon the <i>nasi</i> of each tribe came and selected those bearing the names of the members of his tribe and placed them in a separate receptacle. The slips in each of those receptacles were then counted in order to arrive at a census for each tribe. With the removal of the slips bearing the names of the members of the first eleven tribes, all remaining names were perforce known to be names of persons belonging to the twelfth tribe without need for any further selection. Accordingly, explains <i>Ari ha-Kadosh,</i> with regard to each of the first eleven tribes, Scripture states “Of the sons of … according to the number of names,” whereas with regard to Naphtali, the last tribe to be counted, Scripture states simply, “The sons of Naphtali….” With regard to each of the first eleven tribes, explains <i>Ari,</i> the names counted were of the sons of that tribe only, to the exclusion of slips bearing names of members of other tribes. Hence the phrase <i>“of</i> the sons …” which excludes all others. However, when it came time to count the tribe of Naphtali, <i>all</i> names remaining in the hands of Moses were counted since no other names remained.</i>
  Participation in censuses conducted in the Diaspora does not ordinarily present a problem because the prohibition against counting is limited to the counting of the Jewish populace.29<i class="footnote">R. Rachamim Yitzchak Pelaggi, <i>Yafeh la-Lev,</i> I, <i>hashmatot,</i> no. 55, sec. 2, cites R. Berachyah Berach, <i>Zera Berakh, Parshat Bamidbar,</i> who permits all forms of counting in the Diaspora on the basis of kabbalistic considerations. <i>Ẓiẓ, Eli’ezer,</i> VII, no. 3, sec. 30, dismisses those comments as a homiletic excursus rather than as a halakhic ruling.</i> Counting Jews as part of a census of the general population with no effort to ascertain the precise size of the Jewish community entails no violation of Jewish law. However, participation in a census which is designed to determine the specific number of members of each religious group, including the Jewish community, would be problematic. Such a census would presumably be sanctioned by the authorities who permit the Israeli census, but only when conducted by means of a written questionnaire and undertaken for a legitimate purpose.
  Rabbi Kasher, however, sanctions a census of both Jews and non-Jews even when the census is designed to yield population figures for the Jewish community. Rabbi Kasher's permissive view with regard to the Israeli census is based in part upon the consideration that the Israeli census is not limited to the Jewish populace but includes non-Jews residing in Israel as well. Rabbi Kasher, without citing sources or developing a compelling argument, views this procedure as permissible despite the fact that the census is also designed to determine the specific number of Jews residing in Israel. Rabbi Kasher's conclusion in this regard is sharply contested by <i>Ẓiz Eli'ezer,</i> VII, no. 3, sec. 2.
  Rabbi Kasher finds additional grounds to permit the Israeli census despite the fact that it is ostensibly designed to yield the number of Jewish nationals within the State of Israel. He maintains, as does <i>Hatam Sofer</i>, that an inaccurate reckoning is merely an approximation. Moreover, unlike <i>Hatam Sofer,</i> Rabbi Kasher is prepared to permit an inaccurate reckoning even without accompanying half-shekels as "ransom." Accordingly, he argues that since many individuals who have not undergone valid conversion procedures are counted as Jews by the census-takers, the results are inaccurate and hence constitute a mere approximation of the Jewish populace.30<i class="footnote">Rabbi Rudick, <i>Teḥumin,</i> IV, 332, observes that the fact that there are, unfortunately, some Jews who seek to conceal their Jewish identity further contributes to the inaccuracy of the tabulation of the size of the Jewish populace.</i>
  It should be noted, however, that in addition to <i>Hatam Sofer,</i> another authority, <i>Ramat Shmu'el,</i> cited by <i>Ez Yosef</i> in his commentary on <i>Ein Ya'akov, Yoma</i> 22b, forbids even an approximate tabulation. In the view of <i>Ramat Shmu'el,</i> the prohibition against counting the populace applies even when the method employed is inaccurate and hence yields only an approximation. In support of this position <i>Ramat Shmu'el</i> cites Hosea 2:1 which he renders literally as "which shall not be <i>estimated (lo yimad</i>) and shall not be counted."31<i class="footnote">Cf., <i>Mispar Bnei Yisra’el,</i> p. 29, note 10b.</i>
  Other authorities question the undertaking of a census by the government of the State of Israel on the basis of a variety of considerations:
  1. Rabbi Goren concedes that, were each individual to fill out a separate form, the subsequent counting of the forms themselves, i.e., the counting of individual pieces of paper, would present no problem. However, he views the counting of individual names recorded on such forms as being significantly different in nature. That distinction, as earlier noted, is contradicted by Ralbag and <i>Ha'amek Davar.</i>
  2. Rabbi Goren further contends that the concept of "purpose" or "necessity (<i>zorekh</i>), as formulated by Ramban, is limited to a need involving elimination of danger to life. Accordingly, he expresses reservation with regard to the legitimacy of a census undertaken for purposes of economic planning. Rabbi Goren concedes that the censuses undertaken by Moses were not predicated upon a "purpose" involving a threat to life. He maintains, however, that Moses' censuses were permitted only because the half-shekel collected in conjunction with the census served as a "ransom." However, it should be noted that in the words of Ramban, who formulated the concept of "purpose" there is no suggestion that the concept is limited to a life-threatening consideration.
  It is noteworthy that a thesis similar to that advanced by Rabbi Goren is propounded by one biblical commentator in order to resolve the contradictory midrashic explanations of the nature of King David's transgression. <i>Or ha-Hayyim,</i> Exodus 30—12, explains that David erred in conducting a census which was not undertaken for a valid purpose. In advancing this explanation <i>Or ha-Hayyim</i> follows Ramban, Numbers 1:3, and the midrashic sources cited by the latter. As noted earlier, the Gemara, <i>Berakhot</i> 62b, indicates that, had David followed the procedure stipulated in Exodus 30:12 and taken the census by means of a collection of half-shekels, he would have incurred no transgression even though the census was undertaken in the absence of a legitimate purpose. Ramban regards this contradiction as reflecting diverse midrashic traditions. <i>Or ha-Hayyim,</i> however, resolves the contradiction by postulating that, when undertaken by means of half-shekels which are contributed to the sanctuary as a "ransom," a census may be undertaken even in the absence of a valid "purpose."32<i class="footnote">See <i>Ẓiẓ Eli’ezer,</i> VII, no. 3, sec. 22, cited above, note 16.</i> <i>Or ha-Hayyim,</i> however, does not restrictively define the concept of "purpose" as limited to a matter involving danger to life.
  3. Other authorities also argue that the present census serves no legitimate function, but do so on entirely different grounds. Rabbi Schwartz, <i>Mispar Bnei Yisra'el,</i> p. 31, note 11, and p. 36, note 1, cites an assertion to the effect that, when the approximate size of the population is already known, a census designed to yield more precise figures does not serve a legitimate "purpose." This appears to have been Rabbi Waldenberg's major reservation with regard to the 5721 census as recorded in <i>Ẓiz Eli'ezer,</i> VII, no. 3, sec. 53.
  4. Rabbi Goren further contends that a census of the population of the State of Israel may constitute a counting of "all of Israel" which he argues (without citing the second analysis presented by Ramban, Numbers 1:3) is forbidden under all circumstances, With regard to an entirely different matter, Rambam, <i>Hilkhot Shegagot</i> 13:2, basing himself upon <i>Horiyot</i> 3a, declares that the halakhic concept of a "community" is limited to Jews who reside in Israel. This point is made by Rabbi A. I. Kook, <i>Mishpat Kohen,</i> no. 143, p. 308, and by other authorities with regard to other facets of Halakhah, but is the subject of considerable dispute.33<i class="footnote">See R. Ovadiah Yosef, <i>Yabi‘a Omer,</i> VI, <i>Oraḥ Ḥayyim,</i> no. 41, and <i>Contemporary Halakhic Problems,</i> II, 180. Parenthetically, it should be noted that counting the majority of the Jewish people is tantamount to a census of the entire community of Israel. See <i>Ẓiẓ Eli’ezer,</i> VII, no. 3, sec. 24. This is evident from the categorization of the census conducted by Joab as a violation of the prohibition despite the fact that Joab excluded the tribes of Levi and Benjamin and hence his census involved only ten tribes. See Rashi and Redak, II Samuel 24:9 and Marharit, <i>Ẓafnat Pa’aneaḥ, Ki Tissa, derush</i> 1. <i>Ẓiẓ Eli’ezer,</i> VII, no. 3, secs. 20 and 37, maintains that, for purposes of this prohibition, the counting of inhabitants of an entire city and, <i>a fortiori,</i> of an entire country, constitutes the counting of an entire “community.” <i>Naḥal Eitan</i> 6:10, sec. 7, opines that the counting of any specific class of individuals, e.g., potential conscripts for military service, is similarly encompassed within the ambit of this prohibition.The counting of the population of local areas and subsequent tabulation of the population of the entire community on the basis of those figures is forbidden according to all authorities. Indeed, as recorded by <i>Yalkut Shim’oni,</i> II Samuel 24, Joab conducted his census by means of compiling the aggregate tabulation of family groups.<i>Ẓiẓ Eli’ezer,</i> VII, no. 3, sec. 2, declares that, even in the event that figures for specific groups or areas have already been obtained, it is forbidden to tabulate the total population by combining the previously ascertained figures.</i>
  5. In prohibiting participation in the Israeli census despite the fact that it is conducted by means of a written questionnaire, Rabbi Chaim Kanievsky, in his statement issued in 5732, relies in part upon an opinion of <i>Hatam Sofer</i> which is reported in <i>Teshuvot Ketav Sofer, Yoreh De'ah,</i> no. 106. Rabbi Kanievsky quotes <i>Hatam Sofer</i> as prohibiting counting "even by means of writing."34<i class="footnote">For a similar view with regard to written oaths and vows see <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah,</i> nos. 220 and 227 and <i>Ḥoshen Mishpat,</i> no. 79. Cf., however, sources cited by <i>Ẓiẓ Eli’ezer,</i> VII, no. 50.</i>
  However, <i>Hatam Sofer</i> as cited by <i>Ketav Sofer</i> (as distinct from the position taken by <i>Hatam Sofer</i> both in his <i>Kovez Teshuvot</i> and in his novellae) states only that no distinction is to be made between "speaking" and "writing" with regard to census-taking. Thus, according to <i>Hatam Sofer,</i> it would be prohibited to count people by means of recording numbers just as it is forbidden to count them orally. Certainly, if no distinction is made between speaking and writing, it would be forbidden to record names and numbers in serial order in order to yield a total count. However, the counting of slips of paper bearing names,35<i class="footnote"><i>Ẓiẓ Eli’ezer,</i> VII, no. 3, sec. 41, suggests that recording names on a list which has been prenumbered in the margin may also be permissible.</i> or the counting of the names recorded on slips of paper, is not necessarily banned by <i>Hatam Sofer</i> (as reported by <i>Ketav Sofer</i>).36<i class="footnote">See <i>Naḥal Eitan</i> 6:10, sec. 7.</i>
  Nevertheless, it need not be assumed that this distinction was overlooked by Rabbi Kanievsky in his brief comments. It should be noted that the census form contains a box in which the total number of family members is to be entered by the census-taker.37<i class="footnote"><i>Mispar Bnei Yisra’el,</i> p. 38, states that on the census forms employed in 5743 people were asked to record names of all family members on unnumbered lines and the box in which the total number of all family members was to be entered was “abrogated.” Such a box does, however, appear on the form reproduced by Rabbi Rudick, <i>Teḥumin,</i> IV, 333. Presumably, this box, although present, was not used pursuant to the agreement reached with the Chief Rabbinate. See below, note 41 and accompanying text.</i> Thus there is a direct written declaration of the total number of members in the family unit.
  In light of the foregoing, even assuming that, contrary to the positions of <i>Hatam Sofer,</i> there is no prohibition against a written tabulation, the census-taker would be required to exercise care in determining the number of members within the family unit solely by counting the names recorded on the form rather than by eliciting the information orally from the householder.38<i class="footnote">It should, however, be noted that <i>Pe’at ha-Shulḥan</i> permits the counting of people when such counting is carried out other than in their presence. As evidence he cites the Mishnah, <i>Shabbat</i> 148b, which provides that a person may count his guests orally on the Sabbath. <i>Pe’at ha-Shulḥan</i> explains that the prohibition against counting does not apply under such conditions because the counting is done in preparation for the meal prior to the arrival of the guests. <i>Ḥatam Sofer,</i> however, understands the Mishnah as permitting the counting of guests only in the sense of permitting the counting of portions prepared for each of the guests.</i> It is noteworthy that the present Chief Rabbis, in a letter addressed to the appropriate government official, confirm an agreement to the effect that the census-takers would not record these numbers.39<i class="footnote"><i>Teḥumin,</i> IV, 336. It may be assumed that this tabulation was omitted because of the likelihood that the information would be elicited orally and in order to conform with the opinion of <i>Ḥatam Sofer</i> as recorded by <i>Ketav Sofer</i> and that it was further stipulated that all calculations be made electronically in order to conform with the opinion of <i>Ḥatam Sofer</i> as expressed in his <i>Koveẓ Teshuvot.</i></i>
  6. Rabbi Kanievsky also follows Ramban and <i>Tosafot Rid</i> in forbidding even indirect counting unless undertaken for a "purpose." From the context of his remarks it is evident that Rabbi Kanievsky does not view contemporary censuses as being undertaken for a valid purpose. Indeed, it may be that consideration which he regards as determinate. Whether or not a census serves a valid purpose is an issue which is essentially factual in nature and is contingent upon the exigencies of the situation.
  In conjunction with the 5732 census, Rabbi Unterman ruled that the recording of names in answer to the questions posed on the census questionnaire is to be deemed "an indirect" form of counting. He further advised that persons who are not prepared to rely upon this permissive view should merely inform the census-taker of any change in the number of members of the household which may have occurred since the prior census without disclosing the total number of family members.40<i class="footnote">See <i>Teḥumin,</i> IV, 335.</i>
  Various modifications were introduced in conjunction with the 5743 census as a result of an agreement between the government and the Chief Rabbinate. The agreement provided that only names of family members would be recorded, that the accompanying numbers on the blank lines provided for this purpose would be eliminated and, as noted earlier, that the number of persons in the household would not be totaled by the census-takers. The agreement further provided that the tabulation of all demographic information be performed entirely by means of electronic devices and that the process in no way involve calculations performed by human beings.41<i class="footnote">See <i>Teḥumin,</i> IV, 336, and <i>Mispar Bnei Yisra’el,</i> p. 38.</i>
  V. Danger as Distinct from Transgression
  At least two authorities, <i>Klei Hemdah, Parshat Ki Tissa,</i> and <i>Naḥal Eitan</i> 6:10, sec. 7, assert that the danger inherent in the taking of a census is entirely independent of any prohibition concerning counting the populace.42<i class="footnote">See also <i>Mispar Bnei Yisra’el</i>, p. 20.</i> Therefore, according to these authorities, even in situations in which (according to some opinions) no prohibition pertains, e.g., only a portion of the populace is counted or the census is taken by indirect means, the procedure nevertheless involves an inherent danger and should be eschewed for that reason. Other authorities maintain that, although it may be forbidden to count even a portion of the populace, danger is present only when a census of the entire people is taken.43<i class="footnote">See <i>Mispar Bnei Yisra’el</i>, p. 21.</i>
  Of interest with regard to the question of danger is the opinion of an anonymous authority cited by <i>Midrash Talpiyot,</i> no. 20.44<i class="footnote">See <i>Ẓiẓ Eli’ezer,</i> VII, no. 3, sec. 11, and <i>Mispar Bnei Yisra’el,</i> p. 21, note 4.</i> According to this view, the danger of a plague is present only when the census is taken by a "king" for vainglorious motives. Some evidence for this view may be found in <i>Yalkut Shim'oni,</i> II Samuel 24. <i>Yalkut Shim'oni</i> records that Joab attempted to suppress accurate results of his census and did not wish to apprise King David of the total number counted.45<i class="footnote">See also <i>Bamidbar Rabbah,</i> 2:10.</i> Ostensibly, once the counting was completed, the harm had already been done and the delivery of an accurate report to the king would have involved no further transgression.46<i class="footnote">In complying with the directive of King David even though he recognized it to be at variance with Halakhah, Joab was faithful to his own non-normative view, recorded in <i>Sanhedrin</i> 49a, to the effect that the prohibition against <i>lèse majesté</i> applies even under such circumstances. Alternatively, he may also have felt that disobedience to the command of the king would imperil his own life.</i> However, if it is the king's hubris which engenders danger, Joab's desire to prevent David from receiving this information is readily understandable since in suppressing the results he would succeed in averting danger to the populace.47<i class="footnote">Cf., however, <i>Ẓiẓ Eli’ezer,</i> VII, no. 3, sec. 2, who states that, as reported by <i>Yalkut Shim’oni,</i> Joab transmitted the “smaller” number but not the “larger” because tabulation of a census of the larger populace by means of adding the sum of smaller groups is also forbidden. According to <i>Ẓiẓ Eli’ezer,</i> Joab transmitted the figures for various groups counted, i.e., the “smaller” tabulations, but declined to combine the numbers in order to determine the aggregate or “larger” number. See above, note 33.</i>
  <i>Mispar Bnei Yisra'el,</i> p. 31, note 12, declares that any form of publicization or dissemination of the results of a census is forbidden since it is to be assumed that the "evil eye" is enhanced thereby. That consideration may well have been the reason that Joab sought to withhold accurate results of his census from David.
  
  Chapter XIV The Device of the "Sages of Spain" as a Solution to the Problem of the Modern Day Agunah
  
  <i>A man cannot exist without a woman and a woman cannot exist without a man; both cannot exist without the Divine Presence.</i>
  PALESTINIAN TALMUD, BERAKHOT 9:1
  In recent years numerous attempts have been made to alleviate the plight of the modern-day <i>agunah,</i> i.e., the woman whose husband declines to cooperate in the execution of a religious divorce despite the irreversible breakdown of the marital relationship as evidenced by the issuance of a divorce decree by a civil court. The simplest remedy by far would lie in the drafting of an antenuptial agreement between the bride and groom which would bind the husband to the payment of an extravagant sum of money upon failure to execute a religious divorce within a specified period of time subsequent to entry of a judgment of divorce by a court of competent jurisdiction. There are, however, a number of considerations which effectively serve to bar consideration of such a remedy:
  (1) Realistically, in order to be effective, any remedy for the problem posed by the recalcitrant husband must be enforceable in secular courts. The husband who, for whatever reason, refuses to alleviate the plight of his estranged wife is unlikely to abide by the conditions of any agreement or voluntary undertaking unless he recognizes that judicial proceedings may be initiated in order to compel fulfillment of the terms of such an undertaking. Hence an agreement providing a penalty for non-performance of an undertaking to deliver a <i>get</i> will be of little avail since penalty agreements are, in most cases, unenforceable in a court of law. In common law, penalty agreements are regarded as being in violation of public policy and hence are not actionable.
  There is some disagreement with regard to the precise nature of the public policy which renders penalty agreements odious. Many scholars accept the proposition that it is "obviously against conscience that a person should recover a sum of money wholly in excess of any loss incurred"1<i class="footnote">W. S. Holdsworth, <i>A History of English Law,</i> V (Boston, 1927), 293.</i> but disagree with regard to the nature of this violation of conscience. It has been contended that enforcement of such stipulations would lead to taking unconscionable advantage of an accident,2<i class="footnote"><i>Loc. cit.</i> Holdsworth also suggests that a person seeking to enforce such an agreement “might, in some circumstances, come perilously close to committing a fraud.”</i> would constitute unfair recovery in excess of justifiable reliance,3<i class="footnote">See Ian Macneil, “Power of Contract and Agreed Remedies,” 47 <i>Cornell Law Quarterly</i> (1962) 495, 499-501.</i> or that contracting parties, overly optimistic about capacity to perform obligations, would be subject to severe hardship.4<i class="footnote">See Charles T. McCormick, <i>Handbook on the Law of Damages</i> (St. Paul, 1935), p. 601.</i> It may also be the case that the legal prejudice against enforcement of penalty clauses is rooted in the concept that imposition of punitive sanctions is the exclusive prerogative of the State and cannot be made the subject of an agreement between private parties. Individual citizens cannot stipulate the punishment to be imposed for a crime committed by one party against another; nor are private persons competent to criminalize actions which are not so categorized by the State. Other authorities maintain that the public policy offended is the concern to limit recovery for breach of contract to damages actually suffered in order to discourage performance of contractual undertakings in situations in which adherence to the provisions of an agreement would be uneconomic. Legal theory assumes that uneconomic performance is wasteful and hence not in the public interest.5<i class="footnote">See, for example, Charles J. Goetz and Robert E. Scott, “Liquidated Damages, Penalties and the Just Compensation Principle,” 77 <i>Columbia Law Review</i> (1977) 554-94.</i>
  (2) Penalty clauses, in many if not most instances, are similarly unenforceable in Jewish law, albeit for other reasons. In Jewish law such agreements constitute an unenforceable <i>asmakhta.</i> The essence of a contract is the "meeting of the minds." In Jewish law this is reflected in the need for <i>gemirat da'at</i> on the part of the person bound by the contract, i.e., finality of intent and determination to be truly bound thereby, and for <i>semikhat da'at</i> on the part of the beneficiary, i.e., satisfaction with regard to the other party's determination to perform and mental reliance thereon. Absent these reciprocal psychological phenomena, no binding contract exists.
  Inclusion of a penalty clause in a contractual agreement is designed to spur performance of the primary obligation. Characteristically, a person obligating himself to payment of a penalty for non-performance agrees to such a stipulation only because he is confident of his ability to perform and does not seriously anticipate that he will be called upon to fulfill the secondary undertaking. Accordingly, since at the time of assumption of the obligation there is no seriousness of intent with regard to payment of the penalty, the requisite element of <i>gemirat da'at</i> is lacking and hence the penalty is unenforceable. Thus, for example, a contractor who enters into an agreement to construct a building, and binds himself to complete the project by a certain date under penalty of payment of a stipulated sum should he fail to complete construction by that date, will not be compelled to pay the contractually stipulated penalty for non-performance. No prudent contractor enters into such an agreement unless he firmly intends to perform on the contract. He agrees to insertion of a penalty provision solely because he is confident of his ability to perform and does not seriously anticipate that he will be called upon to fulfill the contingent obligation, viz., payment of the penalty.
  Since a penalty agreement is unenforceable in Jewish law any attempt to compel payment by means of recourse to secular courts or otherwise is, from the vantage point of Halakhah, indistinguishable from extortion. Any attempt to secure a <i>get</i> upon threat of illicit enforcement of such an undertaking is tantamount to coercion of the <i>get</i> itself and hence a religious divorce granted under such circumstances would be invalid by reason of duress.6<i class="footnote">See <i>Tashbaẓ,</i> I, no. 1; <i>Teshuvot Mabit,</i> I, no. 22, and II, no. 138, Cf., however, <i>Teshuvot Rivash,</i> no. 126.</i>
  (3) Even if the defect of <i>asmakhta</i> were to be obviated and the penalty rendered actionable, the validity of a religious divorce executed pursuant to such an agreement would remain under a cloud. The validity of a <i>get</i> executed under circumstances of self-imposed duress (<i>onsa de-nafsheh</i>) is the subject of considerable dispute among early authorities. <i>Bet Yosef, Even ha-Ezer</i> 134, cites <i>Teshuvot ha-Rashba</i> as maintaining that a <i>get</i> executed pursuant to an actionable undertaking to indemnify the wife's family for failure to deliver the <i>get</i> is invalid by reason of not being executed voluntarily. Similarly, <i>Shulḥan Arukh, Even ha-Ezer</i> 134:4, rules that if the husband swore an oath to grant a <i>get</i> the oath must be annulled prior to execution of the <i>get</i> since the oath, although voluntarily assumed, constitutes a form of duress. Rema, <i>Even ha-Ezer</i> 134:4, rules that a <i>get</i> should not be executed in a situation in which delivery of the <i>get</i> serves to avoid a voluntarily assumed financial obligation but that <i>post factum</i> a <i>get</i> executed under such circumstances is valid.
  The first step in crafting an acceptable device for assuring the cooperation of the husband is to find a means of curing the defect of <i>asmakhta.</i> Given the extreme and well-founded reluctance on the part of rabbinic authorities to sanction any procedure which would render the <i>get</i> invalid even according to a minority view,7<i class="footnote">See <i>Teshuvot R. Beẓlel Ashkenazi,</i> no. 15; <i>Bet Me’ir, Even ha-Ezer</i> 134:4; and <i>Mishkenot Ya’akov, Even ha-Ezer,</i> nos. 38-41, who maintain that all authorities are in agreement with Rashba in maintaining that the <i>get</i> is invalid in situations in which the husband regrets his prior financial undertaking in the event that he fails to grant a <i>get.</i> Cf., however, <i>Ḥazon Ish, Even ha-Ezer</i> 99:3 and 99:5.</i> the remedy must avoid the taint of <i>asmakhta</i> in a manner accepted by all authorities. Such a device was fashioned by early authorities in an entirely different context.
  Engagement contracts have from time immemorial provided for a penalty to be imposed for breach of promise. Ostensibly, such penalties are not enforceable by reason of <i>asmakhta. Tosafot, Baba Mezi'a</i> 66a, propounds the theory that the penalty is actually compensation for the shame and humiliation caused to the rejected party. As such, the stipulated penalty is actionable in a manner closely resembling the concept of liquidated damages which figures prominently in other systems of law. In common law, penalties are enforceable to the extent that they are designed to compensate for damages suffered provided that the precise extent of the damages are difficult to ascertain and there is a reasonable relationship between the stipulated payment and the extent of actual or consequential damages.8<i class="footnote">See 5 Corbin, <i>Contracts,</i> ch. 58 (1964 and Supp. 1980); 5 Williston, <i>Contracts,</i> §§776-89 (3d ed. 1961); and <i>Restatement (Second) of Contracts</i> §356 (1).</i> Rambam, <i>Hilkhot Mekhirah</i> 11:18, apparently rejecting this theory, advises that the contract be drafted in a particular and innovative manner in order to avoid the <i>asmakhta</i> defect:
  When the sages of Spain wished to convey by means of <i>asmakhta</i> thus did they do: They entered into a <i>kinyan</i> with this [party] that he owes his friend a hundred dinarii. After he obligated himself they entered into a <i>kinyan</i> with his creditor that "whenever thus and so shall transpire or [whenever] he shall do thus and so the debt is forgiven retroactively, but if it shall not transpire or he shall not perform I will claim the money to which he has obligated himself." We acted in this manner in all engagement contracts between a man and his wife and in all similar matters.
  The device crafted by the "Sages of Spain" and reported by Rambam provides for two separate and ostensibly unrelated undertakings. The first consists of a unilateral and unconditional obligation undertaken <i>ex gratia</i> to pay a specified party a certain sum of money. The second consists of a conditional forgiveness of that obligation by the beneficiary of the undertaking. Forgiveness of the already assumed unconditional obligation is made contingent upon fulfillment of a stipulated condition. Thus, for example, a prospective groom enters into an obligation in favor of his fiancee for the payment of one hundred dinarii. She, in turn, predicates her forgiveness of that debt upon solemnization of a marriage between the groom and herself.
  That the groom's undertaking is free of any taint of <i>asmakhta</i> is quite evident. His obligation is unconditional and unequivocal. The binding nature of the bride's release is somewhat more problematic. Her forgiveness is predicated upon the groom's performance. To be sure, her release is in the form of an inducement to perform rather than in the nature of a penalty for non-performance. Nevertheless, according to some authorities, conditional obligations of such nature are categorized as <i>asmakhta.</i> Thus, Rambam, <i>Hilkhot Mekhirah</i> 11:3, rules that a person who stipulates "If you will go with me to Jerusalem on a certain day, or if you will bring me a certain object, I will give you this house, or I will sell it to you for so much and so much" is not bound by his undertaking unless the beneficiary takes possession of the house immediately, thus rendering the condition a condition subsequent rather than a condition precedent.9<i class="footnote">According to some authorities, in order for such an agreement to be actionable the recipient must take physical possession of the property being conditionally conveyed; according to other authorities, transfer by deed or payment of the purchase price is sufficient. See <i>Bet Yosef, Ḥoshen Mishpat</i> 207. The author of <i>Perishah, Ḥoshen Mishpat</i> 207:14 and <i>Sema, Ḥoshen Mishpat</i> 207:6, maintains that the crucial distinction is whether the primary desire is fulfillment of the condition or validation of the conveyance. If the primary concern is the transfer of property and the condition is stipulated as a material aspect of the conveyance the transaction is not void by reason of <i>asmakhta</i>; but if the primary concern is the fulfillment of the condition, and the transfer of property is effected merely as an inducement designed to secure performance of the condition, the transaction is void by reason of <i>asmakhta.</i></i> However, Rabbenu Nissim, <i>Nedarim</i> 27b, maintains that forgiveness is never rendered nugatory by reason of <i>asmakhta.</i> The distinction between a promissory undertaking and a release in this regard is essentially psychological. A person undertaking an obligation in the nature of an <i>asmakhta</i> lacks seriousness of intent with regard to performance, whereas forgiveness, by its very nature, pertains to situations in which the beneficiary is already in possession of the funds or property to be conveyed. Hence the person accepting such a stipulation is quick to realize that fulfillment of the stipulated condition will simply cause possession to ripen into title and that, since possession has been confirmed, repayment of funds or return of property will not be forthcoming.
  Nevertheless, <i>Maggid Mishneh,</i> in his commentary on Rambam's ruling, remarks that the device of the "Sages of Spain" conforms to the view of only "the majority of opinions." The minority view not satisfied by such a procedure is presumably that of Rashi, <i>Baba Mezi'a</i> 47b, as elucidated by Rabbenu Nissim, <i>Nedarim</i> 27b, who maintains that forgiveness is also governed by principles of <i>asmakhta</i> coupled with the position that <i>asmakhta</i> applies not only to penalties but to inducements as well.
  The expedient devised by the "Sages of Spain" can readily be adapted to assure that a recalcitrant husband would find refusal to grant his estranged wife a <i>get</i> to be inimical to his financial interests. The groom might be required to enter into an antenuptial undertaking obligating himself to the payment of a specified sum to the bride. The monetary obligation, undertaken in consideration of marriage, would be unilateral and would be entirely unconditional. The undertaking would provide that the specified sum might be claimed by the wife at her discretion at any time. The bride would deliver a release forgiving the groom's obligation subject to the execution of a religious divorce. Assuming that a husband would prefer to divorce his wife rather than pay the stipulated sum, the wife would, in effect, be able to secure a <i>get</i> upon demand. It is of course obvious that, since the husband can readily avoid performance of his undertaking by executing a <i>get,</i> no woman desirous of continued marital bliss would attempt to compel performance of the husband's undertaking by presenting a claim for satisfaction of the stated obligation.
  A similar expedient can be utilized to avoid situations in which the husband desires a religious divorce but the wife refuses her cooperation in its acceptance. Since, by virtue of rabbinic edict, a woman cannot be divorced against her will, the husband is barred from entering into a new marital relationship unless he is able to establish grounds for a <i>heter me'ah rabbanim</i> which serves as dispensation from the ban of Rabbenu Gershom prohibiting polygamous marriage. It is only because of the specter of the husband's ability to establish grounds for a <i>heter me'ah rabbanim</i> that many such situations are avoided with the result that the incidence of recalcitrant wives is much less frequent than that of recalcitrant husbands. Nevertheless, such situations do arise on occasion and might be entirely avoided by means of this expedient.
  In order to avoid such situations the bride would similarly enter into a unilateral and unconditional undertaking to pay a specified amount to the groom. Thereupon the husband would enter into a separate undertaking to forgive that obligation upon acquiesence of the wife to the execution of a religious divorce. In order to assure the cooperation of both parties, the bride and the groom would each be required to enter into an undertaking of this nature and to execute a conditional release of the opposite party's obligation. The net result would be that, when both parties agree to a <i>get</i>, both undertakings become extinguished. So long as neither party desires a <i>get</i> the reciprocal obligations, provided they are for an identical sum of money, have the effect of cancelling one another and remain dormant. If one party desires a <i>get</i> and the other does not, the monetary obligation of the party willing to execute a <i>get</i> is <i>ipso facto</i> forgiven while the obligation assumed by the recalcitrant party remains in full force.
  The expedient devised by the "Sages of Spain" is endorsed by Rambam and is codified by <i>Shulḥan Arukh, Hoshen Mishpat</i> 207:16 and <i>Even ha-Ezer</i> 50:6, and hence must be regarded as normative. Even an understandable desire on the part of rabbinic scholars not to sanction execution of a <i>get</i> when its validity is subject to challenge even on the basis of a minority opinion should not serve as a barrier to utilization of such a device. To be sure, as indicated by <i>Maggid Mishneh,</i> some authorities would regard the conditional release of the undertaking herein outlined as invalid by reason of <i>asmakhta.</i> However, since the undertaking and the release are entirely separate and discrete, the onus of <i>asmakhta</i> does not at all taint the primary undertaking. Thus the unconditional undertaking to pay the specified sum is enforceable according to <i>all</i> authorities. Accordingly, there can be no question that an action to enforce that undertaking does not constitute extortion. Similarly, since the assumed obligation is not at all linked to failure to execute a <i>get,</i> there arises no question of self-imposed duress. According to the minority view, the obligation with regard to payment of the specified sum is simply not extinguished by the actual execution of a religious divorce because the release is defective by reason of <i>asmakhta</i> and hence the original obligation survives despite the cooperation of the party. Yet no person need hesitate to enter into such an agreement for fear that he will be called upon to satisfy the financial undertaking despite his cooperation in the execution of a religious divorce. Since a <i>Bet Din</i> cannot act to compel payment in accordance with the minority view, no <i>Bet Din</i> will be in a position to compel performance of the undertaking once a <i>get</i> has been executed.10<i class="footnote">Moreover, if both bride and groom enter into identical undertakings, such reciprocal undertakings have the effect of cancelling one another. However, this does not mean that the recalcitrant party may rely upon the minority opinion in claiming that his or her release of the other party’s obligation is void for reason of <i>asmakhta</i> and hence that the respective obligations are always extinguished. Such a pleading (<i>kim li</i>) is, in this case, perforce predicated upon a minority view rejected by <i>Shulḥan Arukh</i> and Rema and for that reason does not serve as a defense against a legitimate claim. See R. Yonatan Eibeschutz, <i>Urim ve-Tumim, Kiẓur Tokpo Kohen,</i> sec. 124. Nor can such a pleading be advanced on the basis of a minority view as a counterclaim when the validity of the original claim is incontestable. See <i>Teshuvot Ra’anaḥ,</i> II, no. 1; <i>Pri Tevu’ah,</i> no. 47; and <i>Divrei Ge’onim, klal</i> 91, sec. 11. Since, in this case, the validity of the monetary undertaking is not subject to dispute, the defending party can advance his or her own claim for an identical sum only as a counterclaim. However, since this pleading can be sustained only on the basis of a minority view (which regards the reciprocal undertaking as unextinguished because the release is void by reason of <i>asmakhta</i>) it cannot be interposed as a counterclaim in order to secure exoneration from satisfaction of an obligation the validity of which is incontrovertible.</i>
  A proposal for an antenuptial undertaking along these general lines, but which incorporates significant modifications, has been outlined by Rabbi Judah Dick in an article published in <i>Tradition,</i> vol. 21, no. 2 (Summer, 1983), pp. 91-106. A Hebrew version of the same proposal appeared in <i>Sefer ha-Yovel li-Khevod ha-Grid Soloveitchik</i> (Jerusalem, 5734), I, 226-36. The latter publication contains an addendum by Rabbi Saul Israeli expressing a number of objections to the proposal focusing upon the validity of the device of the "Sages of Spain" when applied to a situation involving execution of a <i>get</i> in order to avoid satisfaction of a financial undertaking.
  The expedient devised by the "Sages of Spain" was carefully crafted to avoid the defect of <i>asmakhta.</i> There remains, however, the further question of whether an undertaking of this nature constitutes a form of self-imposed duress, such that a <i>get</i> executed pursuant to its provisions by a person unwilling to grant a divorce other than because he is faced by the prospect of financial loss would be invalid according to the opinion of Rashba, <i>Teshuvot ha-Rashba,</i> IV, no. 40.
  In essence, Rashba's position is that a <i>get</i> is invalid when executed under duress even if such duress is indirect. Hence, duress compelling a person to fulfill a perfectly binding undertaking to pay compensation for failure to execute a religious divorce invalidates the <i>get</i> since it is simply an indirect means of securing compliance in executing the <i>get.</i> Those who disagree with Rashba maintain either that self-imposed duress does not constitute duress11<i class="footnote">See the responsum of Ritva cited in <i>Bet Yosef, Even ha-Ezer</i> 154; <i>Teshuvot Maharik,</i> no. 63; <i>Tashbaẓ,</i> II, no. 68; and Rema, <i>Even ha-Ezer</i> 134:5.</i> or that, since the enforceable demand is for financial compensation rather than for a <i>get,</i> a religious divorce executed under such circumstances is not to be regarded as executed under duress; i.e., so long as satisfaction of a lawful claim remains a viable option in order to avoid execution of the <i>get,</i> execution of the <i>get</i> in order to avoid payment of a just debt is regarded as a voluntary act motivated by the self-interest of the husband.12<i class="footnote">See the responsum of R. Maimon Nagar cited in <i>Bet Yosef, Even ha-Ezer</i> 134; and Rema, <i>Even ha-Ezer</i> 134:5.</i> Essentially, the controversy between Rashba and other authorities is with regard to situations in which the husband is subject to duress of some nature: he is compelled either to execute a <i>get</i> or to pay a certain sum of money upon failure to do so. Since the husband is under no independent obligation to make payment and can avoid the <i>get</i> only by means of such payment, a <i>get</i> executed under such circumstances is regarded by Rashba as having been obtained under duress—indirect duress, but duress nonetheless.
  However, this is not to say that, according to Rashba, all conceivable forms of indirect duress invalidate a <i>get.</i> This can be demonstrated on the basis of a <i>reductio ad absurdum.</i> Were it the case that in every instance in which the husband executes a <i>get</i> in order to relieve himself of a financial obligation the <i>get</i> is thereby rendered invalid, virtually no divorce would be valid. It is quite true that in our day the primary motive in many, if not most, instances prompting a husband to execute a <i>get</i> is a desire to be free to enter into a new marital relationship. Nevertheless, it must be remembered that under biblical law the husband need not execute a <i>get</i> in order to achieve that end. Since biblical law sanctions polygamy the husband does not lack capacity to enter into a second marriage without terminating the first. The husband's sole motivation, then, is a desire to free himself of the financial and conjugal obligations which flow from the marital bonds. The existence of those financial obligations and the desire to be free of them do not constitute duress; rather, considerations of such nature lie at the essence of a determination to dissolve the marital relationship. A husband may choose either to continue a marital relationship and both to enjoy its privileges and bear its burdens or he may terminate the relationship by means of a <i>get</i> and thereby deny himself the advantages of marriage and avoid its concomitant burdens. Similarly, a person in need of cash who sells property in order to realize the purchase price cannot void the sale for reason of duress. No one would ever sell property unless he has determined that, given the attendant circumstances, he prefers the money to continued ownership of the property. It is for precisely the same reason that a <i>get</i> executed in return for a freely accepted financial inducement is regarded by all authorities as voluntary in nature. The fact that, absent such inducement, the husband would refuse to grant the <i>get</i> does not render his act involuntary. The husband enjoys complete freedom of choice with regard to continuing the marital relationship or receiving the benefit of the proffered sum. Accordingly, a <i>get</i> executed in return for financial inducement is regarded as valid by all authorities. R. Shimon ben Zemaḥ Duran, <i>Tashbaz,</i> II, no. 68, rules that a <i>get</i> executed pursuant to an agreement to forgive an outstanding debt is similarly valid. In effect, <i>Tashbaz</i> rules that forgiveness of a debt is no different from delivery of cash. To be sure, failure on the part of the husband to acquiesce to the arrangement may result in application of various sanctions designed to compel payment of the debt. Those sanctions are, however, not designed to enforce execution of a religious divorce but rather to compel payment of a lawful debt entirely unrelated to the <i>get.</i>
  The sole difference between the situation described by <i>Tashbaz</i> and that addressed by Rashba is that, in Rashba's case, assumption of the debt is coupled with, and made contingent upon, failure to grant a <i>get.</i> Rashba's objection is based upon the fact that a financial obligation of such nature is generated solely as a means of enforcing the <i>get.</i> Since there is a direct linkage between the financial undertaking and the <i>get,</i> enforcement of the financial undertaking, although it is self-imposed, is regarded as duress with regard to the <i>get</i> itself. The compulsion is, to be sure, indirect but is regarded by Rashba as compulsion with regard to the <i>get</i> nonetheless.
  A unilateral and unconditional obligation by the groom in favor of the bride coupled with an agreement to cancel the debt in return for a <i>get</i> would appear to be identical in nature to the situation described by <i>Tashbaz.</i> Since the groom's undertaking is not linked to non-execution of a <i>get</i> Rashba's objection would not appear to be pertinent. However, further analysis of this matter must be undertaken in light of the comments of a 16th century scholar, R. Moses di Trani, <i>Teshuvot Mabit,</i> II, no. 138. In commenting upon the ruling of <i>Tashbaz,</i> this authority writes:
  … for also that which <i>Tashbaz,</i> of blessed memory, wrote that if they coerced him with regard to other matters and in order to preserve himself from that coercion he agrees to divorce, it is not a coerced <i>get.</i> … It appears to me that this is when they coerce him with regard to another matter not with intent of divorce, and he, of his own accord, in order to avoid that punishment, divorces of his own accord, as R. Shimon, of blessed memory, twice wrote in his phraseology "of his own accord (<i>me-azmo</i>)." … However, when they wish to compel him with regard to the divorce, and they would not have been concerned to compel him and to insist upon some other matter with regard to which they would have been able to compel him, but in order to compel him with regard to the <i>get</i> they compel him with regard to some other matter which they know that he cannot fulfill and [therefore] he will divorce, then it appears that the coercion is precisely with regard to the <i>get.</i>
  Although the terminology of Mabit is not entirely unequivocal, he may be understood as deeming a <i>get</i> to be invalid in one of two circumstances: (1) either when the husband is financially incapable of meeting the demand made upon him; or (2) when the financial claim is not pressed for its own sake but solely for the purpose of securing a <i>get.</i>
  The qualms expressed by Mabit in circumstances in which the husband is financially incapable of meeting the demand made upon him are readily understandable. An attempt to press an illegitimate claim is tantamount to extortion. The husband's acquiescence to a <i>get</i> in order to avoid extortion constitutes execution of the <i>get</i> under duress. Jewish law prohibits pressing a debtor for payment of even a just debt when it is known that the debtor is insolvent. This prohibition is derived from the biblical verse "If you lend money to any of my people … you shall not be to him as an exactor" (Exodus 22:24). Mabit regards an attempt to exact payment under such circumstances as the equivalent of extortion since the claim is, practically speaking, not actionable, i.e., although the debt is not extinguished, a claim may not legitimately be pressed when it is known that satisfaction is not possible.
  Nevertheless, the concern expressed by Mabit does not serve to bar utilization of the agreement which is the subject of this discussion. In light of Mabit's position care must simply be taken to limit any actual claim for recovery to an amount within the financial capability of the husband. Any remaining balance will continue to be due and owing with payment deferred until such time as the husband is financially capable of satisfying his obligation.
  Rabbi Israeli, however, is concerned that a <i>get</i> granted pursuant to such an agreement would be defective by virtue of the second consideration raised by Mabit, viz., that the primary interest in enforcing the agreement is compliance in the delivery of the <i>get</i> rather than enforcement of the financial undertaking. Indeed, if the groom's undertaking and the bride's release subject to execution of a <i>get</i> are merged in a single instrument this concern may well be cogent. Under such circumstances there may be strong reason to construe the undertaking regarded in its entirety as designed primarily to assure the execution of a <i>get.</i> In order to obviate this objection the groom's undertaking and the bride's release should be drafted as entirely separate instruments. Under such circumstances the wife may institute a cause of action on the basis of a document that declares only the husband's unconditional undertaking. Since, under such circumstances, the sole relief demanded by the wife is financial, and that financial claim is the sole subject of the instrument upon which her claim is predicated, there is no <i>prima facie</i> reason to assume that the wife's expressed desire to press a financial claim is merely instrumental to obtaining a <i>get.</i> In pressing the claim and in any pleadings drafted by the wife or drafted on her behalf, scrupulous care should be taken not to refer to the husband's ability to exonerate himself from his financial obligation by executing a <i>get.</i> Any offer to execute a <i>get</i> should originate with the husband—in the words of <i>Tashbaz</i> "of his own accord." The existence of a conditional release already signed by the wife should be of no significance provided that, in pressing her claim, she makes no attempt to secure a <i>get</i> but institutes a bona fide claim for fulfillment of the husband's financial undertaking—an undertaking which, were the husband desirous of renewed marital bliss, he would be compelled to honor and to recognize as being entirely compatible with continued domestic harmony.
  A more serious obstacle is presented by the position expressed by R. Ya'akov of Lissa, <i>Torat Gittin</i> 134:4. <i>Torat Gittin</i> addresses himself to the oft-occurring situation in which, following negotiations between the parties, the husband agrees to execute a <i>get</i> and thereupon the wife seeks some form of assurance that the husband will not renege on his agreement. The expedient devised by the "Sages of Spain," i.e., an unconditional monetary undertaking on the part of the husband coupled with a conditional release executed by the wife, is rejected by <i>Torat Gittin</i> for utilization in such situations. <i>Torat Gittin</i> argues that, although the husband's undertaking is ostensibly unconditional in nature, he nevertheless retains the option of legitimately withdrawing from his commitment should the wife subsequently fail to execute a conditional release. <i>Shulḥan Arukh, Hoshen Mishpat</i> 195:6, rules that any agreement entered into by means of a <i>sudar</i> (seizing of a "kerchief") may be rescinded until such time as "the parties rise," i.e., so long as the matter remains the subject of unadjourned conversation between the parties. It is clear, argues <i>Torat Gittin,</i> that, under the circumstances, were the wife not to execute a conditional release, the husband would retract his own undertaking as he is legally empowered to do. Hence, concludes <i>Torat Gittin,</i> a linkage does in fact exist between the husband's undertaking and the wife's conditional forgiveness with the result that the husband's undertaking assumes the guise of a self-imposed penalty for non-execution of a religious divorce.
  It is important to clarify the precise nature of <i>Torat Gittin</i>'s objection. <i>Torat Gittin</i> does not challenge the validity of the procedure adopted by the "Sages of Spain" insofar as commercial or engagement contracts are concerned. In those contexts such undertakings are entirely valid since the sole impediment to actionability of a penalty agreement is the defect of <i>asmakhta</i> which is entirely cured by the remedy crafted by the "Sages of Spain." Although, as <i>Torat Gittin</i> points out, the husband's undertaking is in reality contingent upon the wife's conditional forgiveness, the undertaking itself, once assumed, is unconditional. The wife's release is a condition precedent for the husband's assumption of his stipulated obligation but, once assumed, the husband's obligation is undertaken in the form of an unconditional obligation. Insofar as <i>asmakhta</i> is concerned the form of the undertaking is crucial. An absolute undertaking is free from the defect of <i>asmakhta.</i> Although the person entering into the undertaking may freely withdraw if a conditional release is not forthcoming, nevertheless, once the undertaking becomes effective, it is unconditional in nature. <i>Torat Gittin</i>'s objection is that although the undertaking is not defective by reason of <i>asmakhta,</i> when employed in the context of an agreement to grant a divorce, the linkage between the husband's undertaking and the wife's conditional forgiveness is such that <i>de facto</i> it constitutes a penalty for non-execution of a <i>get</i> and hence, according to Rashba, a <i>get</i> executed pursuant to such an agreement is void for reason of duress. <i>Torat Gittin</i>'s contention is that duress exists wherever there is linkage of any nature between the undertaking and the granting of a <i>get.</i>
  The position advanced by <i>Torat Gittin</i> does indeed serve as a formidable barrier to adoption of the proposal as heretofore outlined.13<i class="footnote">Rabbi Dick endeavors to accommodate the view of <i>Torat Gittin</i> by conditioning the wife’s release upon execution of a <i>get</i> within a specified period of time. <i>Torat Gittin</i> declares that the husband’s obligation is enforceable under such circumstances provided that a timely <i>get</i> is not executed because the two instruments are no longer interdependent after the expiration of this specified period of time. See <i>Tradition,</i> vol. 21, no. 2, p. 100, note 29. Rabbi Israeli correctly observes that such an arrangement renders it impossible for the husband to execute a <i>get</i> within the time period unless the obligation is forgiven, but if the obligation is indeed forgiven there is nothing to prevent the husband from refusing to grant a <i>get.</i> Moreover, according to <i>Torat Gittin,</i> the husband can totally avoid both the <i>get</i> and the monetary obligation by offering to execute the divorce within the stipulated time period. According to Rashba, such a divorce would be invalid since it is executed in order to avoid a penalty for non-execution. However, since the husband is not permitted to execute the <i>get</i> despite his willingness to do so within the stipulated time period, he cannot be required to pay the stipulated penalty after the stipulated period has elapsed. See <i>Sefer ha-Yovel,</i> I, 239-40.</i> However, a modification may be made in the proposal which will render it entirely compatible with the position of <i>Torat Gittin.</i>
  As will be shown, the modification earlier advocated to render the agreement compatible with the view expressed by <i>Tashbaz</i> will overcome the concerns expressed by <i>Torat Gittin</i> as well. <i>Torat Gittin</i> speaks of a situation in which the husband's undertaking and the wife's conditional release are both executed at a single sitting. Were the respective instruments to be executed on two separate occasions his objections would not obtain. Having risen from the deliberations subsequent to the assumption of an unconditional undertaking, the husband no longer enjoys the option of renouncing his undertaking even if the wife fails to execute a conditional release as anticipated by the husband. Indeed, it is precisely for that reason that a husband who has agreed to grant a divorce (which is the situation discussed by <i>Torat Gittin</i>) will not allow the parties to rise with his undertaking in force unless the wife executes a release at the same sitting. The husband cogently fears that the wife will accept a <i>get</i> and then insist upon fulfillment of the financial undertaking or, if a conditional release is subsequently demanded prior to execution of the <i>get,</i> she may refuse to accept a <i>get</i> in lieu of payment of the financial obligation assumed by the husband.
  An antenuptial undertaking on the part of the groom is another matter entirely. The groom should be advised to execute his undertaking at the time of the couple's engagement or during the course of a prenuptial conference in the rabbi's study. On the same occasion the bride should execute a similar obligation in a like amount in favor of the groom.14<i class="footnote">A single, unconditional undertaking to be entered into by the groom is not advised because such an undertaking would remain binding even if the engagement is later broken. An undertaking of that nature could, of course, be made contingent upon subsequent solemnization of the marriage by rendering it actionable only after marriage has occurred. Such a procedure is not advised because it may possibly be argued that <i>Torat Gittin</i>’s position renders such an expedient defective. To wit: The groom certainly has the option of rendering the agreement nugatory by refusing to enter into the marriage. Indeed, it may be presumed that he would refuse to do so were the bride to refuse to execute the anticipated conditional release. Hence, it might be argued, a linkage is created between the coming into being of the actionability of the undertaking at the time of marriage and the bride’s conditional release. In the opinion of this writer, since it is the prior undertaking rather than the marriage that binds the groom and the agreement itself cannot be rescinded unilaterally, no linkage is created between the actual undertaking and the contingent release. Be that as it may, a procedure involving reciprocal undertakings by the bride and groom is certainly not subject to such objection and, additionally, affords protection against a recalcitrant wife as well.</i> Prior to the wedding ceremony the bride should be advised to execute a release of the groom's obligation contingent upon the granting of a religious divorce by the groom. At the same time, the groom would be required to execute a similar release contingent upon the wife's agreement to accept a <i>get.</i> Since, in accordance with this procedure, the instruments and the releases are executed at different times no linkage whatsoever exists between the husband's financial undertaking and an agreement with regard to a <i>get.</i> Thus, <i>Torat Gittin</i>'s objection does not pertain to an arrangement of this nature. Insofar as financial consequences are concerned, neither party need fear that he or she will be burdened with an onerous debt as a result of the other party's subsequent refusal to execute a conditional release, since failure to execute mutual releases would leave the parties with reciprocal obligations which effectively nullify one another. Moreover, the aggrieved party would retain the option of refusing to proceed with the marriage unless the requisite instruments are exchanged.15<i class="footnote">For a remedy based upon an entirely different expedient requiring but a single document rather than four separate instruments and which makes no reference whatsoever to the contingency of divorce, see J. David Bleich, “Modern-Day <i>Agunot</i>: A Proposed Remedy,” <i>The Jewish Law Annual,</i> IV (1981), 139-54.</i>
  
  Chapter XV The Sotheby Sale
  
  <i>One who has lost property goes in search of his lost article.</i>
  KIDDUSHIN 2b; NIDDAH 31b
  <i>Alas for those who are gone and are no more to be found!</i>
  SANHEDRIN 111a
  During the latter part of June 1984, the prestigious auction firm, Sotheby Parke-Bernet, arranged the sale of sixty-one rare Hebrew books and manuscripts dating from the thirteenth to the nineteenth centuries. The two most valuable items—a hand-written Bible with the accompanying commentary of Rashi transcribed in Prague in 1489 and an illuminated Spanish High Holiday prayer book dating from the latter part of the fourteenth century—were sold privately for $900,000 to an anonymous purchaser who presented them to the Jewish Theological Seminary. The remaining books were sold at public auction on June 26, 1984. The public sale realized a total of $1.45 million. The auctioned items are known to have belonged to <i>Die Hochschule für die Wissenschaft des Judenthums</i> (the College for the Scientific Study of Jewish Culture), a Reform seminary in Berlin, which was closed by the Nazis in 1942. The books were therefore presumed to have been destroyed by the Nazis during World War II. The first indication that the books and manuscripts had indeed been preserved came in April 1984, when Sotheby's announced that the items in question would be offered for sale by an anonymous consignor on June 26th. The auction took place despite protests by numerous Jewish groups and a last-minute effort by New York State Attorney General Robert Abrams to prevent the sale. Later it became known that the purported owner was Dr. Alexander Guttmann, a former faculty member of the <i>Hochschule,</i> who subsequently became a professor of rabbinics at Hebrew Union College in Cincinnati. Dr. Guttmann contends that shortly after the infamous <i>Kristallnacht</i> pillage in 1938, the President of the Board of Governors of the seminary presented the books to him as a gift so that he might smuggle them out of Germany. He maintains that he was approached to accept the volumes because he was in possession of an American visa, and that the books were conveyed to him gratuitously in order to induce him to spirit them out of Germany despite the great personal risk which such an undertaking entailed. The gift, claims Dr. Guttmann, was made in order that the books and manuscripts might be preserved for posterity.1<i class="footnote">See Defendant’s Memorandum of Law in Opposition to Plaintiff’s Motion for Preliminary Injunction at 9-10, <i>Abrams</i> v. <i>Sotheby Parke-Bernet,</i> No. 42255/84 (N.Y. Sup. Ct. Aug. 25, 1984).</i>
  The Attorney General attempted to prevent the sale and, challenging Professor Guttman's ownership of the books and manuscripts, obtained an order from the New York State Supreme Court freezing all proceeds derived from the sale pending a trial to determine the rightful owner.2<i class="footnote"><i>Abrams v. Sotheby Parke-Bernet,</i> No. 42255/84 (N.Y. Sup. Ct. Aug. 24, 1984) (order granting preliminary injunction).</i> Ultimately, the matter was resolved by means of a court-approved settlement.3<i class="footnote"><i>Abrams v. Sotheby Parke-Bernet,</i> No. 42255/84 (N.Y. Sup. Ct. Aug. 23, 1985) (stipulation and order of settlement). Under the terms of the settlement, Professor and Mrs. Guttmann are to receive $900,000. The Prague Bible and the Spanish High Holiday prayer book are to be returned by the Jewish Theological Seminary and purchased for $900,000 by another anonymous benefactor who will present the Prague Bible to Yeshiva University and the Spanish prayer book to the Hebrew University. Prior to delivery to these institutions, these books are to be made available for exhibition for three consecutive three-month periods at the Jewish Theological Seminary, the Hebrew Union College in Cincinnati and the New York Public Library.According to the terms of the settlement, those items which are not duplicated in the library of any public institution are to be returned by the purchasers and are to be allocated to various libraries upon the recommendation of the Jewish Restitution Successor Organization. The remaining funds realized from the sale are to be apportioned among various institutions for the acquisition of rare books.</i>
  Although the controversy has been quieted by means of a compromise settlement accepted by the parties concerned, the case presents a number of intriguing issues of Jewish law relevant to the resolution of controversies concerning ownership of books rescued from the Nazis during the Holocaust era. An analysis of the halakhic issues presented in the Sotheby case is, therefore, of practical, rather than merely theoretical interest for those who conduct themselves in accordance with Jewish law. Moreover, although disputes regarding transfer of property are generally resolved in accordance with the law of the jurisdiction in which the property is situated at the time of transfer,4<i class="footnote">See, e.g., <i>Hutchison</i> v. <i>Ross,</i> 262 N.Y. 381, 389-90, 187 N.E. 65, 68-69 (1933) (The validity and effect of a transfer of tangible personal property, as well as the capacity to effect such a transfer, are governed by the law of the state where the property is situated at the time of transfer.) Were this principle invoked in the <i>Sotheby</i> dispute, German law would apply. It is highly questionable, however, that any United States court would apply the law of Nazi Germany to such a case, since at the time that the events in dispute took place, Jews had been effectively denied access to German courts either as plaintiffs in suits involving non-Jews or for adjudication of disputes among themselves. Although Jews were not formally denied recourse to German courts until 1942, see R. Hilberg, <i>The Destruction of the European Jews</i> (rev. and definitive ed. 1985), I, 11, as a practical matter, they were effectively barred from utilizing the legal institutions of the Third Reich in enforcing their rights even against fellow Jews at a much earlier date. See D. McKale, <i>The Nazi Party Courts</i> (Lawrence, 1974), pp. 136-37. (Lawyers were threatened with explusion from the Nazi party if they represented Jews in civil trials or in state courts). The only forum of law available to Jews for resolution of diputes was the rabbinic tribunal whose decisions were predicated upon Jewish law. See <i>infra,</i> note 5.</i> in this instance there are strong grounds for asserting that New York courts should regard Jewish law as applicable in like cases both on grounds of comity5<i class="footnote">Attention to the rationale underlying the principle of comity would augur in favor of a determination that the applicable law is Jewish law. Comity is founded upon the notion that parties who rely upon a recognized and established system of law ought to be accorded the protection offered by that corpus of law so long as the result is not offensive to public policy. See Lorenzen, <i>Huber’s de Conflictu Legum,</i> 13 <i>Ill. L. Rev.</i> 375, 403 (1918) (translation of Huber’s classic treatise on comity). Jewish law, although not the law of any sovereign state, is recognized and established. Throughout the Middle Ages, and indeed until the period of the Emancipation, Jews were granted varying degrees of judicial autonomy in virtually all European jurisdictions. Although lacking geographic sovereignty, Jews constituted an <i>imperium in imperio</i> and their legal system was recognized by their countries of domicile. As stated by Israeli Supreme Court Justice Menachem Elon:Elon, “The Sources and Nature of Jewish Law and Its Application in the State of Israel” <i>Israel Law Review</i>; II (1967), 518. Jewish law must be deemed, of necessity, to have been the national law of the Jews during the Nazi period. Jews had no option but to govern themselves by means of their own laws and their own communal institutions: the only alternative was lawlessness and anarchy.In <i>Skornik</i> v. <i>Skornik, Piskei Din shel Bet ha-Mishpat ha-Elyon,</i> VIII (1954), 151, Mr. Justice Agranot expressly affirmed that Jewish law should be accorded due standing by the secular courts of the State of Israel, a common law jurisdiction, on the basis of comity. The question addressed in that case was the validity of a marriage celebrated according to Jewish rites but which was not recognized in the country in which the marriage took place. Justice Agranot held that<i>Idem</i> at 178. In explaining why this is so, Justice Agranot said:<i>Idem</i> at 176-77.The cogency of the application of this principle is exemplified by the following case: A man and a woman desire to enter into a matrimonial relationship. They are domiciled in a jurisdiction that regards all marriage ceremonies as null and void unless celebrated pursuant to the issuance of a marriage license by the appropriate government official. The area is under Nazi occupation and all Jewish inhabitants have been consigned to crematoria. The bride and groom are Jewish and have escaped deportation by going into hiding. For them to declare their identity in securing a marriage license would be tantamount to a self-pronounced sentence of death. They do, however, seek out an officiant well versed in Jewish law and scrupulously adhere to all aspects of relevant Jewish law governing the solemnization of marriage. Assuredly, the parties desire their actions to be governed by law—the <i>only</i> system of law by which they could comport themselves—by Jewish law. Comity should accord the parties the protection and benefit of that corpus of law. This was clearly recognized and enunciated by Justice Agranot in <i>Skornik.</i> The factual situation pertaining to the transfer of books by the <i>Hochschule</i> to Professor Guttmann is entirely analogous and Jewish law should apply for precisely the same reasons.</i> and because it is the law by which the parties felt bound.6<i class="footnote">“The transfer of an interest in chattel is subject to the law of the situs of the tangible personality … <i>in the absence of an indication by the parties that another law is to govern</i>.” <i>Rosenbaum</i> v. <i>Consolidated Prods. Co.,</i> 81, N.Y.S. 2d 571, 572 (Sup. Ct. 1948) (emphasis added) (citations omitted), aff’d, 276 A.D. 1069, 96 N.Y.S.2d 490 (1950). Since such a transfer was illegal under German law, it is impossible to assume that Guttmann and Veit Simon wanted German law to apply to the transfer of property. Since unwillingness to abide by the offensive and discriminatory laws of Nazi Germany should certainly not be construed as refusing to be bound by any system of law, it is a cogent inference that Jewish law, the only law relevant to the parties, was meant to apply.It is indeed the case that the parties were Reform Jews associated with a Reform academic institution and that the Reform movement has rejected the binding authority of Jewish law. However, Reform rejection of Jewish law is limited to such law as it pertains to matters of ritual and religious observance. The ethical and moral teachings of Judaism are resolutely affirmed by adherents of the Reform movement. See K. Kohler, <i>Jewish Theology</i> 46 &amp; ch. LIX (1928). Jewish law governing matters of jurisprudence reflects those ethical and moral principles. This has been explicitly affirmed by exponents of Reform Judaism as evidenced by the statement of a noted Reform scholar who wrote: “The moral law is inscribed on practically every page of rabbinical civil … law.” Stephen M. Passamaneck, <i>A Motion for Discovery</i> (Los Angeles, 1977), p. 14. Although Reform Jews are likely to adjudicate commercial and personal disputes in civil courts, they do so, not because of their rejection of applicable Jewish law, but because, according to their interpretation, the talmudic dictum “The law of the land is the law” (<i>Nedarim</i> 28a; <i>Gittin</i> 10b; <i>Baba Kamma</i> 113a; <i>Baba Batra</i> 54b) bestows precedence upon the civil law and judiciary established by the sovereign authority. All would concede that this is manifestly not the case with regard to the odious laws of the Third Reich. Jews during the Nazi era were effectively denied access to, and relief from, the German courts. See <i>supra,</i> note 4.</i> The halakhic issues, therefore, are relevant to the judicial resolution of controversies concerning the ownership of books rescued from the Nazis during the Holocaust era, and an analysis of the issues presented in the <i>Sotheby</i> case is of practical legal interest.
  In an affidavit submitted to the Court.7<i class="footnote">Professor Guttmann’s narration of the circumstances surrounding his acquisition of the disputed books and manuscripts herein presented is culled from Defendant’s Memorandum of Laws in Opposition to Plaintiff’s Motion for Preliminary Injunction at 9-16, <i>Abrams</i> v. <i>Sotheby Parke-Bernet,</i> No. 42255/84 (N.Y. Sup. Ct. Aug. 24, 1984).</i> Professor Guttmann contends that in the spring of 1939, shortly after having been invited to teach at Hebrew Union College in Cincinnati, he was asked to meet with Dr. Heinrich Veit Simon, a prominent attorney and the president of the <i>Kuratorium,</i> or Board of Governors, of the <i>Hochschule.</i> At this meeting, Veit Simon, knowing that Guttmann was about to leave Germany with his wife and son, sought to ascertain whether Guttmann would risk taking some of the rare books and manuscripts belonging to the <i>Hochschule</i> library out of Germany. Both Veit Simon and Guttmann knew that Jews were prohibited from leaving Germany with valuables or with items of antiquarian interest and that, if caught, the punishment would be imprisonment in a concentration camp or immediate death. Guttmann alleges that, precisely because of the enormous risks involved in undertaking such a venture, Veit Simon proposed to him that if he succeeded in removing the books and manuscripts from the country, those items would become his personal property. Guttmann reports that, initially, he was reluctant to accept the offer. However, Veit Simon persisted and, after consulting with his wife, Guttmann agreed to smuggle the books out of Germany. For his own safety, as well as that of Veit Simon, it was agreed that the matter would be conducted in the utmost secrecy.
  Veit Simon then instructed the Secretary and Chief Administrative Officer of the <i>Hochschule,</i> Hans Erich Fabian, and the Librarian, Jenny Wilde, to unlock certain bookcases so that Guttman could select and remove the books and manuscripts in question from the bookshelves. Fearing, however, that the Gestapo might find the valuable books in his home, Guttmann temporarily hid them under some refuse in a basement shed.
  In accordance with Gestapo requirements, the Guttmanns were obliged to prepare a list of those possessions which they planned to take out of the country and to submit the list to the Gestapo for approval. This was done to ensure that Jews took no items of value with them when they fled Germany. Knowing full well that the books would not be approved and that their inclusion on any list submitted to the Gestapo would jeopardize both his and Veit Simon's lives, Guttmann did not include them on the required list. He did, however, list a large number of unexceptional books from his personal library. After this list was approved, Gestapo agents came to the Guttmanns' home to supervise the packing of all their belongings and to make certain that only approved items would be removed. Working in Guttmann's study, the Gestapo checked the dates of publication of the various books being packed.
  The packing of the books and other belongings could not be completed in a single day. At the end of the day, the Gestapo sealed the two doors of the study so that no one might reenter the room after they left for the purpose of adding or substituting items for those already packed. There was, however, a window-door which opened onto a small terrace. The Gestapo left the door unsealed because it was locked and appeared to offer no access from outside. Unknown to the Gestapo, the terrace onto which the door opened extended to a small adjoining bedroom. Guttmann had a key to the window-door and, after the Gestapo left, he climbed through the bedroom window onto the terrace, entered his study through the unsealed window-door carrying the books and manuscripts that had been hidden in the basement and replaced his own books with the rare books and manuscripts removed from the <i>Hochschule</i> library. Guttmann made certain that everything was packed as before and, in order not to leave evidence of the exchange, he painstakingly duplicated the knots tied around the books.
  After making the exchange, Professor Guttmann hid the previously packed books in the shed where the rare books had been stored. The packing was completed the following day, and the books and manuscripts, together with all of the Guttmanns' other belongings, were put into two five-meter lift vans that were sealed by the Gestapo and shipped to Bremen where the ship on which they expected to sail to America was docked.
  The Guttmanns' anticipated nonquota visa was unexpectedly delayed by consular officials for almost a year. Meanwhile, war broke out in Europe and they could not take a German ship to the United States as planned. Instead, they had to travel via a neutral country and on a ship requiring payment in American dollars. Unable to borrow sufficient funds to take all their belongings with them, they had to consolidate their possessions into a single three-meter lift van.
  Motivated principally by concern for the books and manuscripts, the Guttmanns left their baby with another family and went to Bremen to repack their belongings. In Bremen, however, they again had to operate under the watchful eyes of the Gestapo. Carefully, they discarded some items and repacked others, including the books and manuscripts. The Gestapo then spot-checked the items that had been repacked. In Professor Guttmann's own words, it was only "through the grace of God" that the packages containing the books and manuscripts were not inspected, and he was able to take them with him to the United States. Fortunately, the Guttmanns were saved from tragedy; the day after they returned to Berlin and reclaimed their son, the entire family with whom the child had been staying was arrested by the Gestapo.
  For the next forty-five years, the books and manuscripts remained in Cincinnati, where the Guttmanns still live and where Guttmann taught at Hebrew Union College. At the age of eighty-one, Guttmann, a man of little wealth, facing increasing medical costs, and wishing to leave his children a legacy, decided that the time had come to sell the books and manuscripts. Accordingly, he arranged for the Sotheby sale, the details of which have become public knowledge.
  As noted, this incident has reawakened interest in the much broader question of the halakhic perspective concerning ownership of those books and religious artifacts seized by the Nazis during World War II that subsequently fell into Jewish hands as well as ownership of such items which had been concealed from the Nazis and were subsequently found by persons other than the original owners.
  I. Vesting of Title in Persons Seized of the Property
  The Gemara, <i>Gittin</i> 45b, states that it is proper to purchase sacred books from a non-Jew at a price which reflects their fair market value so that they will not be desecrated or treated with disrespect. However, the Mishnah, <i>Gittin</i> 45a, declares that one should not pay an inflated price, lest non-Jews be prompted to seek out such items for theft in the anticipation that Jews will ransom them for extravagant sums. The sole question is whether one who purchases those items from the thief acquires valid title or whether one is obligated to restore the stolen property to its original owner.8<i class="footnote">R. Ya’akov Breisch, <i>Teshuvot Ḥelkat Ya’akov,</i> I, no. 136, reports his impression that at some unspecified time, the Polish rabbinate issued a proclamation or ban (<i>ḥerem</i>) prohibiting the purchase of books “from the land of bloodshed” but expresses doubt as to the continued binding force of that edict.</i>
  There are a number of halakhic considerations, each of which may arguably constitute sufficient grounds for title to be regarded as vested in those persons who are in actual possession of the books in question. Each of those considerations warrants separate analysis.
  <i>A. Ye'ush and a Successor in Due Course</i>
  According to the law as formulated in the Talmud, the general rule is that one who receives stolen property may convey valid title to a successor in due course provided that the victim of the theft has experienced <i>ye'ush,</i> that is, he has despaired of recovery.9<i class="footnote">There is a controversy among early authorities with regard to whether a successor in due course acquires title only if <i>ye’ush</i> occurs before he comes into possession of the stolen goods or whether his possession ripens into title even if <i>ye’ush</i> occurs subsequent to his having come into possession of the chattel. This controversy is reflected in a dispute between <i>Shulḥan Arukh</i> and Rema, <i>Ḥoshen Mishpat</i> 353:3.</i> Whether or not <i>ye'ush</i> has occurred is ascertained either on the basis of the victim's overt statements or is determined constructively by operation of law.
  A purchaser of stolen property who is legally bound to return the purchased item to its rightful owner is ordinarily entitled to recover the purchase price paid for the item as well as any attendant expenses. This claim is vested in the purchaser by virtue of rabbinic enactment.10<i class="footnote">See <i>Baba Kamma</i> 115a; <i>Shulḥan Arukh, Ḥoshen Mishpat</i> 356:2.</i> Since the purpose of this legislation is to protect the innocent purchaser, some authorities maintain that the purchaser has no claim for reimbursement if the property was acquired from a notorious thief (<i>ganav mefursam</i>).11<i class="footnote"><i>Baba Kamma</i> 16a; <i>Shulḥan Arukh, Ḥoshen Mishpat</i> 356:2. See Rema, <i>Ḥoshen Mishpat</i> 356:3, who rules in accordance with the authorities who maintain that a purchaser from a notorious thief is entitled to reimbursement unless he had knowledge of the fact that the purchased chattel was stolen. Rema further declares that all agree that a purchaser from a notorious thief is entitled to reimbursement upon his declaration that he acted solely in order to protect the interests of the rightful owner.</i>
  The rule regarding sacred books is somewhat different. Since, as stated earlier, there is a duty to ransom sacred books from a non-Jewish thief in order to prevent acts of sacrilege or disrespect, provided that they may be acquired at fair market value or less, and, moreover, since the purchaser is duty-bound to buy such items even from a notorious thief, the purchaser has recourse against the rightful owner for reimbursement of any expenses incurred to the extent of fair market value even if the books have been acquired from a notorious thief.12<i class="footnote">See <i>Hagahot Asheri, Baba Kamma</i> 6:7; <i>Keẓot ha-Ḥoshen</i> 356:3.</i>
  As noted above, title is vested in the purchaser only subsequent to <i>ye'ush</i> on the part of the victim of the theft. <i>Shulḥan Arukh, Hoshen Mishpat</i> 361:3, and a number of leading authorities13<i class="footnote">See <i>Sema, Ḥoshen Mishpat</i> 361:4; <i>Shakh, Ḥoshen Mishpat</i> 356:2; and <i>Bet Shmu’el, Even ha-Ezer</i> 28:1.</i> rule that in cases of robbery (as distinct from theft), and absent evidence to the contrary, <i>ye'ush</i> is not deemed to have occurred because the victim anticipates that he will recover his property by instituting proceedings in a court of law. However, the renowned rabbinic decisor, R. Ezekiel Landau, <i>Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Even ha-Ezer,</i> no. 77, draws the logical conclusion in ruling that <i>ye'ush</i> is deemed to have occurred when legal remedies are unavailable for lack of judicial enforcement.14<i class="footnote">See also R. Meir Arak, <i>Teshuvot Imrei Yosher,</i> II, no. 59.</i> Ostensibly, this is the case when soldiers engage in acts of looting in occupied territory.
  Nevertheless, even under such circumstances, <i>ye'ush</i> may not occur with regard to books printed in the Hebrew language for a different reason. <i>Tosafot, Baba Kamma</i> 114b, rules that a victim of theft does not ordinarily despair of the loss of books printed in Hebrew. This principle is codified as normative halakhah by Rema, <i>Hoshen Mishpat</i> 236:8. The identical principle is recorded by Rema, <i>Hoshen Mishpat</i> 259:3, with regard to lost property. Title to lost property may be acquired by the finder only if there is reason to assume that the loser has despaired of its return. With regard to Hebrew books, the presumption is that the original owner does not abandon hope of recovery because, realizing that such items are of no use to non-Jews, he anticipates that they will be sold to a Jew who will endeavor to restore them to their rightful owners.
  The question of whether it is proper to purchase books which have been plundered by marauding soldiers was first addressed by R. Meir Arak, author of the responsa collection <i>Imrei Yosher,</i> in conjunction with incidents which occurred during World War I.15<i class="footnote"><i>Loc. cit</i>.</i> In light of the foregoing discussion, it might be assumed that, absent <i>ye'ush,</i> a person acquiring Hebrew books from marauding soldiers would be required to restore them to their original owners. Nevertheless, in the case brought to his attention, <i>Imrei Yosher</i> ruled that the purchaser acquired valid title. It was reported to <i>Imrei Yosher</i> that Russian soldiers did not seize books for the purpose of realizing their value by means of sale. Rather, it appears that, at the time, paper of every kind was scarce and books were seized by the looting soldiers because their paper could be used as scrap. Accordingly, <i>Imrei Yosher</i> ruled that if, in the majority of cases, stolen books were converted into scrap or were seized simply for purposes of wanton destruction, <i>ye'ush</i> is to be construed. This ruling is based upon the principle that a person is presumed to despair, or not to despair, of the ultimate return of his stolen property depending upon the usual fate of such items in the majority of cases involving similar circumstances.
  The application of these principles to the circumstances that prevailed during World War II is the subject of controversy among contemporary writers. R. Pinchas Teitz, <i>Ha-Pardes,</i> Kislev 5711, applies the general rule concerning books printed in Hebrew and argues that <i>ye'ush</i> is not to be presumed with regard to Hebrew books seized by the Nazis. An opposing view is espoused by R. Yitzchak Meir Rappaport, <i>Ha-Ma'or,</i> Adar 5715, and by R. Isaac Liebes, <i>Teshuvot Bet Avi,</i> I, no. 157. The latter position is predicated upon a number of considerations:
  (i) Rabbi Rappaport declares that it was well-known that the Nazis "destroyed and burned all Jewish books" and hence <i>ye'ush</i> must be presumed. In a similar vein, R. Ephraim Oshry, <i>She'elot u-Teshuvot mi-Ma'amakim,</i> II, no. 8, states that "everyone knows" that the Germans seized books "to make paper" and therefore "the owners certainly despair" of ever recovering their books. R. Ya'akov Breisch, <i>Teshuvot Helkat Ya'akov,</i> I, no. 137, also states <i>en passant:</i> "We know what was done to sacred books in the … lands of bloodshed; [viz.,] that they were publicly burned with great ignominy."
  These statements are, of course, not entirely correct. Quite to the contrary, it is known that the Germans took pains to preserve certain libraries containing rare books and manuscripts with the intention of housing them together with Torah coverings, ark tapestries, and other religious articles in the various synagogues in Prague which were to constitute a museum containing relics of a vanished people.16<i class="footnote">The intention to preserve books as part of the holdings of the Central Jewish Museum that the Germans planned to establish in Prague is fully confirmed by historical sources. See Linda A. Altschuler &amp; Anna R. Cohn, <i>The Precious Legacy</i> (New York, 1983), pp. 10 and 35. A photograph of a room containing books confiscated by the Nazis is reproduced on p. 35 of that volume.</i> R. Yechiel Ya'akov Weinberg, who prior to World War II served as rector of the Rabbinical Seminary of Berlin (popularly known as the Hildesheimer Seminary), reported in his <i>Seridei Esh,</i> III, no. 71, that the Nazis preserved the books seized from libraries and added that "as is known, our library survived in its entirety and it reposes in Prague." Indeed, Rabbi Oshry himself reported that, in Kovno, the Germans transferred rare books to a library established by a certain collaborator named Rosenberg. To be sure, the Germans did not behave in a uniform manner. It is quite likely that in some occupied areas they destroyed such books indiscriminately. Whether <i>ye'ush</i> is to be presumed would then turn upon the known or presumed comportment of the German army at a given time or place.
  (ii) Another reason for assuming that, given the circumstances which prevailed during the Holocaust, <i>ye'ush</i> must be presumed even with regard to sacred books is advanced by R. Isaac Liebes, <i>Teshuvot Bet Avi,</i> I, no. 157. Rabbi Liebes reasons that <i>ye'ush</i> does not normally occur with regard to stolen sacred books because the only way the thief may profit from such stolen items is by selling them to a Jew. Hence, the victim has no reason to despair of the return of such property. But, argues Rabbi Liebes, this consideration did not apply during World War II because the Nazis were intent upon annihilating the entire Jewish people and it therefore did not enter the mind of any person that the books would again come into the hands of Jews, since "from the day of the creation of the universe there never was a terrible edict such as this—to annihilate, to slay, and to destroy all Israel." The implication is that, under such circumstances, the Nazis would find no Jewish purchasers for the books which they pillaged.
  The ascription of such intention to the Nazis is certainly correct. However, the conclusion which Rabbi Liebes draws therefrom is open to challenge. <i>Ye'ush</i> is a psychological phenomenon reflecting the victim's mental state and is not predicated upon the actual intent of the perpetrator. Rabbi Liebes does indeed amplify his argument with an assessment of the victims' mental state: "In such a state, if they already despaired of their lives, did they not most certainly [despair] of their property? To whom would it occur to think thoughts of his house or fortune while under the nails of the angel of death, the impure foul oppressor, in the death camps and in the ghettos?" Despite its ringing eloquence, this argument is less than compelling. The diabolical designs of the Nazis are now a matter of historical record. But whether or not they were recognized at the time by the intended victims is an entirely different matter. The historical record indicates that the Germans did everything possible to conceal their malevolent intentions from both the victims and the world at large. Moreover, there is certainly every reason to assume that, even in the darkest hours of the Holocaust, the oppressed victims hoped and prayed for the defeat of the Germans at the hands of the Allies, and hence had reason to anticipate that their property would eventually be reclaimed by them or their heirs.17<i class="footnote">Cf. <i>Seridei Esh,</i> III, no. 71, who comments that the victims of the Nazis never abandoned hope that the enemy would be vanquished and that evil would be entirely eradicated.</i> Furthermore, even had the nefarious "final solution" been announced to the intended victims, <i>ye'ush</i> would not have ensued. <i>Ye'ush</i> is a psychological phenomenon and it is unthinkable that Jews of the Holocaust generation would have been so lacking in faith as to believe that, in violation of His covenant with Israel, God would permit the annihilation of the entire Jewish community. Hence, the unfortunate victims would certainly have clung to the belief that the plundered books would ultimately find their way into Jewish hands. Indeed, that belief has been confirmed by history. Accordingly, there appear to be no grounds for ascribing <i>ye'ush</i> to the owners of those books on the basis of Rabbi Liebes' argument.
  (iii) A further reason for assuming that <i>ye'ush</i> occurred during the Holocaust even with regard to Hebrew books is suggested by the comments of R. Ya'akov Breisch in his <i>Helkat Ya'akoṿ,</i> I, no. 137, although the argument is not explicitly formulated by him. The upheavals and deportations of World War II created situations in which, arguably, it is to be presumed that the Holocaust victims realized that there was scant chance that a person coming into possession of property stolen from them, despite his best intentions and efforts, would ever be able to locate the rightful owners. At least with regard to privately-owned property it may be argued that, under such circumstances, <i>ye'ush</i> must be presumed to have occurred.
  <i>B. Right of Conquest</i>
  Quite apart from the principle of <i>ye'ush,</i> which operates to vest title to stolen property in a successor in due course, but not in the thief, there exists another principle of Jewish law which, if applicable, would establish that the conquering armies had themselves acquired title to looted property. <i>Helkat Ya'akov</i> and Rabbi Teitz both suggest that purchasers of sacred books need not return those items to their original owners because the Nazi conquerors acquired title to the spoils of war by virtue of the "right of conquest" (<i>kibush milḥamah</i>).
  A responsum attributed to Rambam dealing with a virtually identical question appears in <i>Shitah Mekubezet, Baba Mezi'a</i> 24b. During a period of unrest, synagogues had been looted and Jews had purchased sacred books from the plunderers. Rambam was asked whether the purchasers had acquired valid title and hence might retain the books as their own, or whether they were obligated to return the stolen property to the original owners. Rambam responded that if the looting occurred at "the command of the king" the purchasers might retain the sacred books; otherwise, they were obligated to return the stolen books upon reimbursement of the funds expended in acquiring those items from the plunderers. Rambam predicated his ruling upon a statement in the Gemara, <i>Avodah Zarah</i> 52b and 54b, to the effect that even the utensils of the Temple lost their sanctity when the Temple was pillaged by conquerors. <i>Helkat Ya'akov,</i> however, maintains that this responsum does not serve as a compelling precedent. <i>Helkat Ya'akov</i> contends that since Rambam's responsum is not cited by subsequent rabbinic authorities, it cannot be deemed authoritative. In addition, both <i>Helkat Ya'akov</i> and Rabbi Teitz express perplexity at Rambam's comparison of the theft of sacred books to the plunder of Temple vessels. They argue that the abrogation of the sanctity inherent in the appurtenances of the Temple is not relevant to the adjudication of property rights which are entirely mundane in nature.
  The comments of these scholars notwithstanding, it appears to this writer that Rambam's position is not only clear but is supported by many other early authorities as well. The Gemara, <i>Gittin</i> 38a, declares that gentiles acquire title, even against Jews, to property seized in the course of war and that conquest in and of itself serves to establish title. Many commentators, including Rashi, maintain that, at least insofar as the property of Jews is concerned, the Gemara does not herein establish a novel mode of acquiring title; rather, title is incidentally acquired in the course of conquest by a quite standard mode, that is, by means of theft accompanied by <i>ye'ush</i>.18<i class="footnote">See also the authorities cited by R. Abraham Dov Ber Kahane-Shapiro, <i>Dvar Avraham,</i> I, no. 11, secs. 2 and 12.</i> Under such circumstances, a successor in due course acquires valid title through the operation of the law of theft. According to these authorities, the import of the Gemara's statement concerning right of conquest is simply that <i>ye'ush</i> may be imputed whenever theft occurs in the context of warfare since, under such circumstances, no redress is available. This analysis of the concept of right of conquest is, however, disputed by Rashba in his commentary, <i>ad locum.</i> Rashba maintains that title is acquired by conquest in and of itself even when it is certain that the conquest is not accompanied by <i>ye'ush.</i>
  It is readily apparent that the applicability of the right-of-conquest principle regarding legal ownership of Hebrew books seized in the course of war is contingent upon the controversy between Rashi and Rashba. If, as Rashi maintains, title is acquired as a result of conquest only when the seizure is accompanied by <i>ye'ush,</i> right of conquest cannot serve to effect alienation of title with regard to Hebrew books since, as noted earlier, <i>ye'ush</i> does not ordinarily occur in conjunction with the theft of books printed in Hebrew. If, however, right of conquest serves to effect transfer of title in and of itself, as Rashba maintains, there is no basis for an exception to that rule with regard to sacred books.
  It appears to this writer that, in distinguishing between looting "at the order of the king" and other forms of looting, Rambam espouses a view identical to that of Rashba in maintaining that right of conquest establishes title, even absent <i>ye'ush.</i> In support of this thesis Rambam cites the rule that conquest can abrogate the sanctity inherent in Temple property. Rambam's citation of this principle should not be regarded as a mere metaphor. Extinguishment of title vested in the domain of the Temple is a necessary condition of the abrogation of the sanctity inherent in Temple property. Moreover, theft does not serve to extinguish title vested in the Temple domain even if accompanied by conditions ordinarily associated with <i>ye'ush.</i> The thrust of Rambam's point, as it appears to this writer, is that since, with regard to Temple property, ordinary theft even when accompanied by conditions of <i>ye'ush</i> does not serve to extinguish title, the fact that "right of conquest" abrogates the sanctity associated with Temple property is evidence that conquest is a novel and independent mode of acquisition and is not merely an instance of acquisition of title by means of theft accompanied by <i>ye'ush.</i>
  Rashba's thesis regarding the nature of right of conquest is also espoused by R. Shimon ben Zemaḥ Duran, <i>Tashbaz,</i> II, nos. 126 and 127. One significant qualification is added by a grandson of Rabbi Duran, R. Abraham ibn Tavah, <i>Hut ha-Meshulash, Tur ha-Shelishi,</i> no. 24. The latter authority rules that if one purchases a "glass stone" from a non-Jew and resells it to another Jew and it is subsequently discovered that the object is actually a gem, the first purchaser has no recourse against the second because the first purchaser acquired property rights only to glass, not to a precious stone. Similarly, rules R. Abraham ibn Tavah, when the conqueror intends to use the seized books for scrap paper, he acquires title by virtue of conquest only to the extent of the scrap value of the items seized. Since the proprietary interest acquired by the plunderers is limited to the scrap value of the seized items, interest in any additional value remains vested in the original owner. Accordingly, since a Jew who acquires such books from plunderers cannot acquire better title than was vested in the seller, he must return the books to their original owners upon payment of their scrap value (or upon indemnification for expenses incurred in their purchase, whichever is greater).19<i class="footnote">This analysis, of course, applies only to situations in which <i>ye’ush</i> has not occurred. The earlier-cited responsum of <i>Imrei Yosher</i> establishes that, absent evidence to the contrary, <i>ye’ush</i> may be assumed when it is known by the victims that the books are to be used as scrap. Under such circumstances, title is vested in the purchaser by operation of the law of theft.</i> Nevertheless, as pointed out by Rabbi Oshry, it seems obvious that if, as was at least sometimes the case during World War II, the looters, recognizing that books are inherently valuable (even if they did not know the full extent of their value), intended to preserve them rather than destroy them or use them as scrap, the plunderers acquired title to the full extent of their value by virtue of conquest and hence the purchaser need not restore such books to their original owners.20<i class="footnote">Contrary to Rabbi Teitz’ comments, this conclusion in no way contradicts the ruling of <i>Ḥut ha-Meshulash</i> since it involves a materially different fact pattern.</i>
  R. Abraham Dov Ber Kahane-Shapiro, the venerable Chief Rabbi of Kovno, in his <i>Dvar Avraham,</i> I, no. 11, sec. 8, advances a novel thesis with regard to "right of conquest" which yields a somewhat modified application of this principle. He asserts that right of conquest results in the vesting of title in a conqueror, and hence in a successor in due course, only so long as the object in question remains in the possession and control of the conqueror or his successor. The original owner, however, is not entirely divested of ownership but retains a residual title. Accordingly, if the conqueror loses possession and control of the captured property, the property does not become <i>res nullius</i>; rather, title is immediately restored to the original owner even without a formal act of acquisition on the latter's part.
  Thus, it appears to this writer that, according to <i>Dvar Avraham,</i> one who purchased or otherwise acquired sacred books from the Nazis may assert a right of ownership in some limited circumstances but not in others. A sharp distinction must be drawn between the situation in which a person purchased or seized property still in German hands and the situation in which the property was acquired subsequent to the defeat of the Germans. If the purchaser acquired the books from the Germans while they still retained title by virtue of right of conquest, it follows that, according to Rashba, the purchaser is under no obligation to return the plundered items to their original owners. If, however, the purchaser came into possession of the books after the defeat of the Nazis, the situation is entirely different. According to <i>Dvar Avraham</i>'s analysis of the principle of right of conquest, the conqueror's title became extinguished upon loss of control and automatically reverted to the original owners prior to acquisition by the purchaser. Hence the purchaser is obliged to return the items in question to their original owners.
  A significant limitation upon the operation of "right of conquest" as a mode of acquisition (<i>kinyan</i>) was enunciated in a 1954 decision of the Rabbinical Court of Jerusalem.21<i class="footnote"><i>Piskei Din shel Batei ha-Din ha-Rabbaniyim,</i> I, 169-73 [hereinafter <i>Piskei Din</i>]. Among the members of the court were the noted scholars R. Joseph Eliashiv and the late R. Betzalel Zolti.</i> The case involved a dispute regarding ownership of a silver Torah crown, originally the property of a private party, a Hungarian Jew. During World War II, Torah ornaments were seized by Hungarian fascists together with all other valuables belonging to Jews. After the war, the Torah crown came into the possession of a communal institution in Jerusalem and was placed on display on Mount Zion. The original owner survived the war and immigrated to Israel. During the course of a visit to Mount Zion, he came upon the Torah crown which he immediately recognized as his property because it was engraved with his parents' names. He was also able to produce a witness, the former sexton of the synagogue in his home community, who had personally delivered the Torah crown to the oppressors. The witness testified that he recognized the artifact and substantiated the plaintiff's claim of prior ownership. The respondent institution did not dispute these facts but contended that it had nevertheless acquired valid title. That claim was based in part upon an assertion that the claimant's title was extinguished by virtue of right of conquest. The <i>Bet Din</i> rejected that contention. Pointing to the fact that the silver ornament had been seized by <i>Hungarian</i> Nazis rather than by German soldiers, the court asserted that title is acquired by conquest only in the course of war against a foreign country. Since a nation cannot engage in acts of "war" against its own populace, reasoned the court, it cannot acquire title to the property of its own citizens by virtue of right of conquest.22<i class="footnote">It appears to this writer that this limitation upon the principle of <i>kibush milḥamah</i> is inconsistent with the thesis advanced by <i>Dvar Avraham,</i> I, no. 1, sec. 5. <i>Dvar Avraham</i> asserts that <i>dina de-malkhuta dina</i> (the law of the kingdom is the law) is not an independent principle of jurisprudence but is derived from <i>kibush milḥamah.</i> According to this thesis, the king is regarded as the “conqueror” who acquires title to all property held by his subjects and therefore enjoys the authority to regulate the disposal of such property. The view of the Jerusalem <i>Bet Din</i> also seems to be at variance with the analysis of <i>kibush milḥamah</i> expounded by R. Yosef Eliyahu Henkin, <i>Peirushei Ivra,</i> no. 3, secs. 10-12. Rabbi Henkin regards <i>kibush milḥamah</i> as belonging to a class of <i>kinyanim</i> which he regards as essentially ontological, rather than affective, in nature.</i> Repressive acts committed by a government or its armies against its own nationals were held to constitute acts of theft and robbery. Hence, the acts of the Hungarian fascists were, in the eyes of the law, indistinguishable from ordinary theft.23<i class="footnote">This analysis of the principle of “right of conquest” serves to illuminate the cryptic comments of R. Israel Isserlein, <i>Terumat ha-Deshen, Pesakim u-Ketavim,</i> no. 69. A question was submitted to <i>Terumat ha-Deshen</i> concerning “books from Dresden” which had been seized by non-Jews under unexplained circumstances and which were subsequently purchased by Jews. <i>Terumat ha-Deshen</i> remarks that, under similar circumstances, his predecessors declined to rule unequivocally in favor of the purchasers. He reports that, at an earlier time, a similar question arose with regard to purchasers of books from countries when “they took books by theft just as they took other property by way of theft.” Earlier authorities had refused to rule that the rights of the heirs of the original owners had been extinguished. Hence, <i>Terumat ha-Deshen</i> declined to offer an advisory opinion but stated that if the litigants were to appear before him he would reflect further on the matter before reaching a decision.<i>Terumat ha-Deshen</i>’s comments are puzzling. He clearly did not deem <i>ye’ush</i> to have occurred since he speaks of the books as objects of theft that must be returned as a matter of law. Nevertheless, even in the absence of <i>ye’ush,</i> he was willing to take the purchaser’s claim of title under advisement. Moreover, even had <i>ye’ush</i> occurred, the successors in due course would have been obligated to restore the books on principles of equity. See section II of this chapter. If, however, it is posited that the books were seized as an act of war, <i>Terumat ha-Deshen</i>’s position can be explained in one of four possible ways:(1) <i>Terumat ha-Deshen</i> may be understood as agreeing with the view attributed to <i>Shakh</i> to the effect that spoils of war need not be returned to the original owner on the basis of equity. Assuming, as is indeed evident from his comments, that <i>ye’ush</i> did not occur, <i>Terumat ha-Deshen</i>’s doubt may then have been whether right of conquest secures title even in the absence of <i>ye’ush,</i> as is the opinion of Rashba, or whether right of conquest is efficacious only when coupled with <i>ye’ush.</i>(2) Alternatively, <i>Terumat ha-Deshen</i> may have been fully in accord with the opinion of Rashba in maintaining that right of conquest is effective even in the absence of <i>ye’ush</i> but was unsure of whether the principles of equity posited by Jewish law apply to spoils of war as later announced by <i>Keẓot ha-Ḥoshen</i> or whether they are not applicable as <i>Shakh</i> maintained.(3) <i>Terumat ha-Deshen</i> may have accepted the position of <i>Shakh</i> that equitable principles are limited to restoration of lost property but was in doubt as to whether the rabbinic decree concerning the return of stolen goods is limited in nature and does not extend to spoils of war, as was maintained by the Rabbinical Court of Jerusalem, or whether the rabbinic decree applies to all seized property without exception.(4) It may be the case that the books in question were seized as an act of the host government against Jewish nationals. If so, <i>Terumat ha-Deshen</i>’s indecision may have involved precisely the novel point identified by the Rabbinical Court of Jerusalem, viz., whether the principle of “right of conquest” is operative with regard to actions of a government against its own nationals.</i>
  The same distinction would apply to property seized by the Germans as well. <i>Mutatis mutandis,</i> no claim of title to property of German Jews seized in Germany by the Nazis could be advanced under the principle of right of conquest. Although such a claim would be cogent with regard to the property of Jews seized by the Germans in other countries, no such claim could be entertained regarding property originally belonging to German Jews with whom Germany was technically not at war.24<i class="footnote">Nor can it be aruged that, upon defeat of the Germans and seizure of Nazi-occupied territory by the allied forces, title became vested in the Allies—and hence in their successors—by virtue of the right of conquest since it is clear that the liberators did not seek to acquire title to booty previously seized by the enemy. On the contrary, the conquering powers made every effort to identify the rightful owners and to restore their plundered property. See <i>Seridei Esh,</i> III, no. 71, and <i>Piskei Din,</i> II, 171-72.</i>
  It is self-evident that a claim of title predicated upon the right of conquest can be entertained only regarding property that actually came into the possession of the Nazis but not regarding property seized in order to prevent it from falling into their hands. A claim of title to property seized in order to prevent its appropriation by the Nazis must be predicated upon entirely different principles of law.
  <i>C. Zuto Shel Yam</i>
  Yet another, and perhaps more basic, argument can be made for assigning valid title to sacred books to individuals who took possession of such property during the Holocaust in order to prevent those items from falling into the hands of the Nazis, the Gemara, <i>Baba Mezi'a</i> 22b, states:
  Whence [do we learn] that an article lost through the flooding of a river may be retained [by the finder]? It is written, "And so shall you do with his ass; and so shall you do with his garment; and so shall you do with every lost thing of thy brother's, which he has lost and you have found" (Deuteronomy 22:3) [which means to say that only] if the object has been lost to him and may be found by any person [has it to be returned to him, and it follows that] a case like this is exempt [from the biblical law] since it is lost to him and cannot be found by any person.
  On the basis of the principle that chattel "lost to all persons," that is, property facing imminent destruction, <i>ipso facto</i> becomes <i>res nullius,</i> the Gemara <i>Baba Mezi'a</i> 21b, declares that if a lost article is found in the intertidal space of the seashore (<i>zuto shel yam</i>) or on ground that is flooded by a river, the finder need not return the article even if it bears an identification mark.
  Rambam, <i>Hilkhot Gezelah ve-Avedah</i> 6:1, asserts that this provision with regard to lost property is predicated upon the general principle of <i>ye'ush.</i> Thus, according to Rambam, the Gemara simply declares that, absent evidence to the contrary, it must be assumed as an operative principle that an individual despairs of recovering any article which faces imminent destruction. Accordingly, Rambam declares that when <i>ye'ush</i> can not be imputed with certainty or when the owner's comportment indicates that he does not despair of recovering his property the rescuer can not acquire title. However, Rosh, <i>Baba Mezi'a</i> 2:2, adopts a position at variance with that of Rambam and asserts that one who rescues property from imminent destruction may always acquire title thereby. Rosh maintains that the rescuer may retain the property as his own, even if the original owner clearly indicates that he does not abandon hope of recovering his property. According to Rosh, such protest and assertion of a continuing property right is of no avail, just as a protest against "the falling of a wall or the sinking of a ship" would be of no avail. In effect, the proprietary interest of the original owner becomes extinguished in the face of imminent destruction.25<i class="footnote">Cf., <i>Peirushei Ivra, no.</i> 3, sec. 10.</i> <i>Shulḥan Arukh, Hoshen Mishpat</i> 259:7 and <i>Hoshen Mishpat</i> 368:1, rules in accordance with the opinion of Rosh.
  This <i>zuto shel yam</i> principle, however, may not be applicable to cases involving ownership of property acquired in time of war for a number of reasons:
  (i) As Rabbi Teitz points out, the relevance of the <i>zuto shel yam</i> argument with regard to World War II circumstances would obviously depend upon varying local conditions. In some places, and at some times, it was known that the Nazis were intent upon destroying sacred books. In other places, and at other times, it was known that they wanted to preserve rare books and valuable artifacts for their own purposes.
  (ii) Moreover, it is not entirely clear that destruction wrought by pillaging armies is comparable to a <i>zuto shel yam</i> situation. In the matter brought to the attention of <i>Imrei Yosher,</i> the interlocutor argued that one who purchases Hebrew books subsequent to their seizure by marauding soldiers acquires valid title on the basis of the principle of <i>zuto shel yam.</i> Since the soldiers were about to destroy the books by reducing them to scrap paper, one who succeeds in purchasing the books from them has, in effect, rescued the books from the "intertidal space of the seashore" (<i>zuto shel yam</i>). In rescuing property destined for imminent destruction, the purchaser acquires valid title on his own behalf. <i>Imrei Yosher</i> dismisses that contention as applied to the situation brought to his attention with a cryptic statement: "The soldiers intended to cut them [but] since they had not as yet done [so] it is not comparable to <i>zuto shel yam.</i>" <i>Imrei Yosher</i> apparently distinguishes between a natural disaster and an act requiring human volition. Since nature is governed by unvarying causal principles, an object about to be destroyed by a natural phenomenon and which cannot be rescued by its owner is, for all intents and purposes, already destroyed insofar as the proprietor is concerned. However, when the object faces destruction at the hands of a human agent, its fate is not assured since the malefactor may undergo a change of heart. Hence, since destruction of the property is not already entailed as a matter of causal necessity, the owner's proprietary interest does not become extinguished.26<i class="footnote">The limitation placed by <i>Imrei Yosher</i> upon application of the principle of <i>zuto shel yam</i> is somewhat problematic. The talmudic foundation of this principle appears in both <i>Baba Meẓi‘a</i> 24a and <i>Avodah Zarah</i> 43a. Although such reference is absent in <i>Baba Meẓi‘a</i> 24a, the Gemara, <i>Avodah Zarah</i> 43a, discusses the rescue of property from armed legions and applies the same rule that governs the case of <i>zuto shel yam.</i> A similar rule is codified in <i>Shulḥan Arukh, Ḥoshen Mishpat</i> 181:1. Perhaps <i>Imrei Yosher</i> distinguished between situations in which the soldiers have actually begun to engage in wanton acts of destruction and situations in which they have merely seized booty with the intention of destroying their spoils but have not actually commenced acts of destruction. If so, <i>Imrei Yosher</i> would regard only the former situations in which the intent has already been partially concretized as being comparable to <i>zuto shel yam</i> and would view the rule expressed in <i>Avodah Zarah</i> 43a and <i>Shulḥan Arukh, Ḥoshen Mishpat</i> 181:1, as limited to situations of such nature.</i>
  (iii) The <i>zuto shel yam</i> argument can be cogently raised only in situations in which the property was spirited away by the claimant in order to prevent it from falling into the hands of the Germans or when the item had been seized from the Germans and the effect was to prevent its imminent destruction. This consideration does not apply in cases in which such items were hidden from the Germans by their owners and, having been spared thereby from discovery and destruction, were found intact after the war. Of course, the argument based upon the general rule that <i>ye'ush</i> serves to enable a successor in due course to acquire title applies even under such circumstances provided, however, that <i>ye'ush</i> has indeed occurred.
  (iv) The <i>zuto shel yam</i> argument may not apply in circumstances in which the books were prevented from falling into the hands of the Nazis by non-Jews and were subsequently acquired by Jews. Mordekhai, <i>Baba Mezi'a,</i> section 257, rules that a Jew cannot acquire title to property rescued from a sinking ship by virtue of purchase from a non-Jewish rescuer since, under applicable civil law as reported by Mordekhai, the non-Jew is obligated to restore the property to its original owner.27<i class="footnote">Contemporary maritime law recognizes a right of salvage in an endangered or derelict vessel and its cargo. The salvors are entitled to an award allowing them liberal compensation for their services rather than an award based simply upon <i>quantum meruit.</i> The amount of salvage compensation is in the discretion of the court. The amount of the award depends upon consideration of all the circumstances of each case and varies with the danger and difficulty of the salvage operation and the value of the property rescued. See Martin J. Norris, <i>The Law of Seamen,</i> 4th ed. (Rochester, 1985), I, 269-71 and 351-54. Medieval German law was, in some circumstances, even more favorable to the salvor. Founding itself upon the notion of “rightlessness” or outlawing of aliens, medieval law established the rule that, when a ship that became stranded on the sea coast or in a river “that is touched the land” the dwellers on the shore had a so-called “strandage right” (<i>Strandrecht</i>) or, in the case of rivers, a “groundage right” (<i>Grundruhrrecht</i>), i.e., the right to appropriate the stranded chattel. Originally, this rule included the right to enslave any shipwrecked person.This is, of course, at variance with the German “law of the land” reported by Mordekhai. The law applied in Germany during the lifetime of Mordekhai (1240(?)-1298) is somewhat unclear. At an early date, it was recognized that these provisions of maritime law served to restrain commerce. Accordingly, in 1220, Emperor Frederick II enacted a statute abrogating the rights of strandage or groundage. This edict was ignored by the Territorial rulers who regarded the seashore as their property and who continued to claim all wreckage washed upon the shore. However, the right of groundage did disappear at an early date on rivers other than the Rhine and the Main. In particular, the commercial cities sought to prevent the exercise of the right of wreck by the Territorial rulers and, in at least one incident which occurred in 1485, caused a Territorial bailiff who seized the goods of a stranded vessel to be hanged as a robber. In cities located on the banks of the Rhine and the Main and on the seacoast there occurred constant and violent disputes between the Territorial princes and the coast or riparian dwellers. See Rudolph Huebner, <i>A History of Germanic Private Law,</i> trans., Francis I. Philbrick (New York, 1968), p. 432.Mordekhai was a disciple of Maharam of Rothenberg. Rothenberg is located near the Tauber River. There is some evidence that Mordekhai later lived in Goslar which is located between the Mittellandkanal and the Elbe River. Subsequently, he resided in Nuremberg near the Pegnitz. See Israel Moses Ta-Shama, “Mordekhai,” <i>Encyclopedia Judaica</i> (Jerusalem, 1972), XII, 311-314 and <i>Rand McNally Atlas</i> (Chicago, 1979), p. 30. It is unlikely that Mordekhai regarded the edict of Frederick II as binding in light of its rejection by local authorities. However, since he did reside in the vicinity of the Rhine or the Main, it is entirely possible that groundage had already disappeared in the locale in which Mordekhai lived at the time that he issued his ruling. It is noteworthy that Mordekhai refers to a “river” rather than to a sea. It is certainly possible that, in order to facilitate trade, the municipalities of the area in which Mordekhai found himself had enacted legislation abrogating groundage and requiring the return of shipwrecked chattel to the original owner.</i>
  Mordekhai's ruling appears to be predicated upon this line of reasoning: An object located in <i>zuto shel yam</i> becomes abandoned property only when it cannot be rescued by the owner himself. Under such circumstances, the object is regarded as if it had already been destroyed. The presence of a potential rescuer does not serve to preserve the property rights of the original owner because when property is about to be lost "to all men," a bystander is not obligated to act on behalf of the proprietor. The case is significantly altered upon the intervention of a non-Jewish rescuer who is bound, by virtue of applicable provisions of civil law, to restore the property to its original owner. Under such circumstances, the presence and action of the non-Jew effectively serves to assure that the property does not in fact face "imminent destruction." Nor, since the owner assumes that the non-Jew will discharge his legal obligations, is there reason for <i>ye'ush</i> to occur.28<i class="footnote">Mordekhai’s ruling is normatively recorded by Rema, <i>Ḥoshen Mishpat</i> 259:7. However, Rema’s citation of Mordekhai’s ruling is somewhat imprecise. In context, Rema’s comments give the impression that the Jewish purchaser must return the property to the original owner because of considerations of civil law. Mordekhai, however, is careful to state that it was not the Jewish purchaser who had rescued the property. The clear implication is that, under the stated circumstances, the purchaser is obligated to restore the property by virtue of Jewish law irrespective of civil law considerations. Mordekhai is quite obviously asserting that the civil law provisions as they apply to non-Jews affect the <i>zuto shel yam</i> status of such property. With regard to whether or not a Jew would be bound by civil law under such circumstances, see Rema, <i>Ḥoshen Mishpat</i> 259:7 and 356:7 as well as <i>Shakh, Ḥoshen Mishpat</i> 356:10.</i>
  II. Obligations "Beyond the Boundary of the Law"
  In the final analysis, none of the foregoing arguments may be dispositive. Rema, <i>Hoshen Mishpat</i> 259:7, 356:7 and 368:1, rules that both lost and stolen property must be returned to the original owner by a successor in due course, even though <i>ye'ush</i> has occurred, and even if the property in question has been rescued from imminent destruction. The obligation to restore lost or stolen property even under such conditions is in the nature of an obligation "beyond the boundary of the law" (<i>lifnim mi-shurat ha-din</i>). Such obligations are duties imposed by considerations of equity rather than by virtue of statutory law.29<i class="footnote">Reflected in the parallel provisions of <i>din</i> and <i>lifnim mi-shurat ha-din</i> are principles roughly equivalent to the common law concepts of law and equity. In instances of <i>ye’ush, zuto shel yam</i> or <i>kibush milḥamah,</i> title becomes extinguished by operation of law but the original owner may still recover his property on the basis of considerations of equity. In early common law, actions in law and actions in equity were brought before different judicial bodies and were adjudicated in accordance with somewhat different principles. Although Jewish law never provided for separate tribunals, it contains a number of distinctions between adjudication on the basis of law and adjudication on the basis of equity. For example, as noted earlier, Rema, <i>Ḥoshen Mishpat</i> 259:3, states that when return of lost property is commanded by equity, but not by law, a poor man cannot be compelled to restore lost property to a wealthy individual.Insofar as lost or stolen property is concerned another distinction arises. An award of chattel to the original owner by operation of law is, in effect, a decision that the title always remained vested in the original owner. The judicial verdict is merely a determination that the title vested in the original owner was never extinguished. On the other hand, an order commanding return of property on the basis of considerations of equity recognizes that title has indeed passed to the purchaser or finder but demands that such title be transferred back to the original owner. However, until that is actually accomplished, title remains in the hands of the finder or purchaser. For that reason, concludes Rabbi Teitz, one who is bound to return sacred books to their original owner by reason of an obligation which is “beyond the boundary of the law” may nevertheless enjoy the use of those volumes until the rightful owner is located. One who is obligated to return such volumes as a matter of law enjoys no such right.<i>Imrei Yosher</i> permits use of such books by one who is in possession of them on other grounds. <i>Imrei Yosher</i> draws attention to the disagreement among halakhic authorities as to whether or not one may temporarily utilize lost property that bears no unique identification mark but that, nevertheless, does not automatically become the property of the finder. He declares that all would agree that a person may make use of plundered sacred books purchased from looters or their successors since “he has paid money and has performed a <i>miẓvah</i>.” Presumably, the consideration underlying this ruling is that the purchaser is entitled to reimbursement of the funds expended in retrieving the stolen property and retains a lien against such property for satisfaction of that claim. Since it is uncertain that the purchaser will ever be able to restore the property to its rightful owner and recover his expenses, he may, in effect, execute his lien by making use of the books. Seridei Esh, however, expresses reservations with regard to this position but nevertheless opines that a scholar who has custody of books belonging to the library of a rabbinical seminary may make use of them pending their return since “the administration of the library certainly would have lent them to him ….”</i> Nevertheless, obligations of this nature are regarded by the Gemara, <i>Baba Mezi'a</i> 30b, as binding by virtue of biblical law. Elsewhere, the Gemara, <i>Baba Mezi'a</i> 16b and 108a, predicates certain similar obligations upon the verse, "And you shall do what is right and good in the eyes of the Lord" (Deuteronomy 6:18). <i>Shakh, Hoshen Mishpat</i> 259:3, states that despite its extralegal nature, fulfillment of this obligation with regard to the restoration of lost or stolen property may be compelled by the court.
  There is some question with regard to whether there exists a similar obligation to restore the spoils of war to their original owners. Rabbi Teitz assumes that no distinction can be drawn between property acquired by right of conquest and stolen property to which title has been acquired by a successor in due course subsequent to <i>ye'ush.</i> However, an entirely different view was expressed in the previously cited decision of the Rabbinical Court of Jerusalem.
  <i>Shakh, Hoshen Mishpat</i> 356:10, distinguishes between the parallel obligations mandating the return of lost and stolen property even when acquired subsequent to <i>ye'ush.</i> According to <i>Shakh,</i> those obligations are separate and distinct. <i>Shakh</i> declares that the obligation devolving upon the purchaser of stolen property to restore it to its rightful owner even though <i>ye'ush</i> has occurred is the product of rabbinic legislation, while the parallel obligation regarding lost property is predicated upon the biblical admonition, "And you shall do that which is right and good." In the opinion of <i>Shakh,</i> the latter obligation is not all-encompassing and does not mandate the restoration of all involuntarily alienated property to the original owner. Rather, the obligation to act beyond the boundary of the law applies only to lost property and requires its return even when <i>ye'ush</i> has occurred. Rabbinic law establishes a similar obligation with regard to stolen property. This rabbinic legislation requires a successor in due course to return stolen property to the original owner even though biblical law provides that when <i>ye'ush</i> has occurred, title is vested in the successor.
  The Rabbinical Court of Jerusalem, however, declared that this rabbinic decree is limited to stolen property in the conventional sense of the term. The <i>Bet Din</i> argued that there is no evidence indicating that the rabbinic decree concerning stolen property was intended to apply to the spoils of war as well. Policy considerations might well warrant a distinction between obligations imposed upon one who receives stolen goods and those imposed upon one who comes into possession of spoils of war. <i>Shakh's</i> position is supported by the fact that Rema refers to the principle of "And you shall do what is right and good" only in <i>Hoshen Mishpat</i> 259:7 with regard to property threatened by imminent destruction in the form of <i>zuto shel yam</i> but fails to refer to this concept in <i>Hoshen Mishpat</i> 356:7 or 368:1 with regard to the parallel obligation regarding stolen property.
  An opposing view is expressed by <i>Kezot ha-Hoshen</i> 259:3. <i>Kezot ha-Hoshen</i> regards the verse "And you shall do what is right and good" as a general biblical principle mandating restoration of lost and stolen property to the original owner even subsequent to <i>ye'ush.</i> As a general principle designed to preserve property owners from undeserved loss, this provision, according to <i>Kezot ha-Hoshen,</i> applies to spoils of war no less than to ordinary theft.30<i class="footnote">The comments of Rashi, <i>Ḥullin</i> 89a, tend to indicate that spoils of war should be restored to their original owner by a successor in due course at least on the basis of ethical considerations. The Gemara declares, “As a reward for our father Abraham having said, ‘I will not take a thread or a shoe-strap’ (Genesis 14:23) his descendants were privileged to receive two commandments: the thread of blue [on the fringes of garments] and the strap of the phylacteries.” Rashi remarks that Abraham was rewarded in this manner because “he did not wish to benefit from theft.” Indeed, the Gemara itself subsequently employs the term “theft” in relation to this incident. The term “theft,” as applied in this context, certainly cannot be understood in a literal sense. The verse cited by the Gemara was uttered by Abraham in declining the offer of the spoils of war proffered by the King of Sodom. Abraham apparently felt constrained to refuse, even though his status was that of a successor in due course, either because principles of equity recognized by the Jewish legal system apply to spoils of war as well as to stolen objects, or because of a general concern to act in accordance with an ethical standard “beyond the boundary of the law.” Cf., <i>Shabbat</i> 120a which characterizes refusal to profit from another’s involuntary abandonment of property in the face of impending fire as an act of piety.</i>
  According to the analysis presented in the decision of the Rabbinical Court of Jerusalem, whether or not property alienated by virtue of right of conquest must be restored to its original owner is a matter of controversy between <i>Shakh</i> and <i>Kezot ha-Hoshen.</i> Although the dispute was resolved on other grounds, in an <i>obiter dictum,</i> the Court declared that the opinion of <i>Shakh</i> should be regarded as normative, that is, a successor to property seized in the course of war need not restore such property to the original owners.31<i class="footnote">The <i>Bet Din</i> also noted other distinctions which flow from the controversy between <i>Shakh</i> and <i>Keẓot ha-Ḥoshen.</i> Duties stemming from equitable principles obligate individuals, but not communal entities. Moreover, as will be noted subsequently, such objections are extinguished if the original owner is wealthy and the finder or successor in due course is poor. In contradistinction, obligations generated by rabbinic edict are universal and binding upon all.</i>
  Moreover, even according to <i>Kezot ha-Hoshen,</i> whose understanding of the principle of "And you shall do what is right and good" requires the return of spoils of war as well, the application of that principle to sacred books is not entirely clear. Equitable considerations do not <i>always</i> compel return of lost property when title has become vested in the finder by operation of law. For example, Rema, <i>Hoshen Mishpat</i> 259:5, rules that Jewish law considerations of equity do not mandate the return of such property when the original owner is a wealthy person and the finder is a pauper. Arguably then, were a like situation to occur with regard to books, a poor man would not be required to return them to a wealthy person. Moreover, Rabbi Liebes, in his previously cited responsum, <i>Teshuvot Bet Avi,</i> I, no. 171, observes that "with regard to sacred books, all are poor." Presumably, the thrust of that statement is that wealth is of no avail with regard to acquisition or use of books if such books are readily available. Therefore, even a wealthy person who has legitimately acquired title to lost or stolen books is entitled to the same equitable consideration as a poor person if he cannot readily replace the books whose return is demanded. Despite this consideration, Rabbi Liebes opines that the sentimental value attached by private owners to sacred books owned prior to the Holocaust always renders the original owner a "poor man" via-à-vis his lost sacred books and that, regardless of their relative financial worth, the original owners must always be deemed "poorer" than a successor in due course.
  Rabbi Liebes' argument compelling the return of books to Holocaust survivors under all circumstances, based as it is upon considerations of emotional attachment, certainly would not apply when the original owner was a communal institution. Nevertheless, there may be strong reason to argue that, at least in some situations, considerations of equity should require the return of books to libraries and communal institutions. Despite the dictum, "Nor is the entire community poor," recorded in the Palestinian Talmud, <i>Gittin</i> 3:7, the community may well be regarded as "poor" vis-a-vis books and manuscripts which are not readily available to its members. Scholars within the community who are potential users of communally owned rare books are certainly "poorer" than unlettered but prosperous finders.
  Curiously, Rabbi Oshry, in his responsum concerning the ownership of books rescued from the Germans during the Holocaust, fails to take note of considerations of equity in Jewish law. He reports that the Germans demanded that the inhabitants of the Kovno ghetto bring their valuables and books to certain designated collection points. A certain Yitzchak Greenberg collected a number of valuable books and, at considerable risk to his own life, placed them in a container which he proceeded to bury in the ground. After the war, a number of former inhabitants of the ghetto returned to that site and commenced digging for the concealed valuables. In the course of these excavations, the container of books was uncovered. A former ghetto resident who was among the returnees recognized some of the volumes as his own and demanded that the finder of the container restore those books to him.
  It is not entirely clear whether Greenberg rescued the volumes in question after they came into Nazi possession or whether he secreted them before they were delivered to the designated collection point. Elsewhere, <i>She'elot u-Teshuvot mi-Ma'amakim,</i> I, no. 14, Rabbi Oshry reports that the books collected from the ghetto residents were delivered to the deputy of Alfred Rosenberg, the German expert on matters of Jewish culture. Since the Germans clearly intended to preserve those volumes, the <i>zuto shel yam</i> principle is not at all germane. Accordingly, if the books were acquired by Greenberg before they came into Nazi possession, title would have remained with the original owner (and hence, even subsequent to <i>ye'ush,</i> could not pass to the successor in due course, viz., the finder). Since Greenberg certainly had no intention of stealing the books, he became, in effect, a gratuitous bailee when he assumed the obligation of preserving the books on behalf of the original owners. If, however, Greenberg acquired the books subsequent to their seizure by the Nazis, the result might be entirely different. If the books were acquired under circumstances in which theft was followed by <i>ye'ush</i> (assuming that during the Holocaust <i>ye'ush</i> occurred even with regard to Hebrew books), or if title became vested in the Nazis by right of conquest, Greenberg would have acquired title as a successor in due course. If he had acquired title and subsequently died without heirs, the books would become the property of whoever happened to find them. If, however, Greenberg did not acquire title, the original owner would certainly have a claim against the finder of that property.
  Unfortunately, this distinction does not emerge from Rabbi Oshry's discussion. Perhaps Rabbi Oshry omitted an analysis of the hypothetical alternative because, having been a witness to the events described, he may well have known that, unlikely as it may seem, Greenberg had acquired the books after they had fallen into the possession of the Germans. Consistent with that presumed fact pattern, Rabbi Oshry ruled that the books were the rightful property of the finder. As noted earlier, if it were assumed that Greenberg secreted the books before they came into possession of the Nazis, it is doubtful that the property rights of the original owner ever became extinguished. More significantly, Rabbi Oshry fails to take note of the obligation enunciated by Rema mandating restoration of property to the original owner on the basis of equitable considerations. Thus, the first issue to be adjudicated is whether title to spoils of war vests in the captor even in the absence of <i>ye'ush.</i> The second, and more crucial, issue is identical to the issue identified by the Rabbinical Court of Jerusalem, viz., whether or not obligations based on equitable considerations extend to property seized by virtue of the right of conquest.
  Rabbi Rappaport, in his previously cited article, <i>Ha-Ma'or,</i> Adar 5715, rejects the contention that books preserved during the Holocaust must be returned to the original owners by reason of equity. He advances the curious argument that, since the original owners made no attempt to recover their property, they, in effect, engaged in "intentional <i>ye'ush</i>." He further asserts that Rema's ruling obligating the restoration of lost and stolen property as a matter of equity applies only when conventional <i>ye'ush</i> has occurred, but is inapplicable in situations involving intentional <i>ye'ush</i> which is tantamount to voluntary abandonment of property. When property is intentionally abandoned, there is clearly no obligation to restore such property to its original owner even as a matter of equity.
  However, this argument, as applied to the post-Holocaust situation, is rather tenuous. In the vast majority of instances, it is hardly the case that refugees voluntarily abandoned their property after the war. In most cases, those individuals either had no opportunity to return to their places of domicile or would have found return to their former homes to have been too onerous an undertaking. Rema's ruling, therefore, seems applicable to the return of property rescued during the Holocaust and recovered during the post-World War II period.32<i class="footnote">It may be noted that R. Yechiel Ya’akov Weinberg, <i>Seridei Esh,</i> III, 71, peremptorily dismisses Rabbi Rappaport’s conclusion as patently erroneous without offering a detailed critique of his position.</i>
  III. Professor Guttmann's Claim
  The halakhic questions which arise regarding the books in Professor Guttmann's possession are different from the foregoing cases in a number of ways. The Attorney General's action was based upon the contention that the books and manuscripts were given to Guttmann for safekeeping. If that was indeed the case, Guttmann became a bailee and assumed the duty of safeguarding those materials on behalf of their rightful owner and, accordingly, is barred from claiming that he acquired title.
  A remarkably similar question was presented to Rabbi Yechiel Ya'akov Weinberg, and his reply is published in his collected responsa, <i>Seridei Esh,</i> III, no. 71. A faculty member of the Hildesheimer Seminary in Berlin selected a number of volumes from the library of that institution and concealed them from the Nazis. That individual survived the war and, taking those books with him, ultimately settled in Haifa. He then wrote to Rabbi Weinberg, the preeminent rabbinic scholar on the faculty of the Hildesheimer Seminary, and asked whether he might claim title to these books. Since the individual acquired the books before they fell into Nazi hands, the sole basis for the claim was the <i>zuto shel yam</i> argument. Rabbi Weinberg responded by saying that, even if the argument were valid, there would nevertheless be an obligation to return the books on the basis of Rema's ruling that such property must be restored because of equitable considerations. Moreover, argued Rabbi Weinberg, the <i>zuto shel yam</i> argument is entirely inappropriate in this case. Rabbi Weinberg reasoned that when his interlocutor came into possession of the books, he undoubtedly assumed that hostilities would soon end and that he would then return the books to the Hildesheimer Seminary library. In effect, he had no intention of acquiring title. Rather, he took possession of the books on behalf of their rightful owners and assumed the obligations of a bailee who accepts property for safekeeping. Rabbi Weinberg concludes his comments by stating that, in his opinion, it would be entirely proper and appropriate for the surviving directors and members of the faculty of the Seminary to allocate a portion of the rescued volumes to the interlocutor as compensation for his efforts.
  The facts in that case are remarkably similar to those in the Sotheby controversy, with the single exception that Guttmann maintains that the books were explicitly given to him as a gift. The controversy surrounding the Sotheby sale similarly involves a situation in which ownership of the books and manuscripts cannot be resolved on the basis of considerations of <i>ye'ush</i> or <i>zuto shel yam.</i> On the contrary, such a claim is expressly negated both by Guttmann's contention that those items were presented to him as a gift and by the Attorney General's contention that the materials were delivered to Guttmann for safekeeping as a bailment. If the books and manuscripts in question were indeed accepted as a bailment and subsequently smuggled out of Germany by Guttmann on behalf of the original owners, he cannot claim title by virtue of having acquired them on his own behalf on the basis of the <i>zuto shel yam</i> principle. Assuredly, a person rescuing such items from a flooding river upon the declaration that he is acting on behalf of the owner of such property could not later claim that he thereby acquired title for himself. A rescuer acting on behalf of the rightful owner cannot subsequently claim title on his own behalf. Nor can a finder of lost property claim title to such property on the basis of <i>ye'ush</i> occurring subsequent to his assumption of the duties of a bailee. The finder, upon assuming the duties of a bailee, must preserve the bailment on behalf of the rightful owner.
  Professor Guttmann's claim to title rests upon the contention that he received the books and manuscripts as a gift. That argument presents an entirely new legal issue. Ordinarily, the burden of proof is upon the plaintiff. Since Guttmann is in possession of the disputed property, the general rule of <i>muḥzak</i> would ostensibly apply, that is, a person in possession of property who asserts a claim of title to that property is presumed to be the rightful owner.33<i class="footnote">For a detailed discussion of the rule of <i>muḥzak,</i> see <i>Encyclopedia Talmudit,</i> XIV, 40-81.</i> The burden of proof lies with the litigant who seeks to defeat the prima facie evidence of possession. It follows that, since Guttmann is in possession of the disputed books and manuscripts, presumption of title lies with him and the plaintiff bears the burden of demonstrating that Guttmann's claim of title is specious.
  However, if Guttman's claim of title can be rebutted, the fact that Guttmann is a <i>muḥzak,</i> that is, that he is in actual possession of the disputed property, would not itself serve to establish title, particularly since the concept of a statute of limitations is alien to Jewish law. The fact that a litigant is a <i>muḥzak</i> merely serves to confirm an otherwise cogent claim but, absent a cognizable claim, <i>muḥzak</i> alone is an irrelevant factor. The Attorney General contended that, even granting that Veit Simon gave the books to Guttmann as a gift, Guttmann did not acquire valid title thereby because Veit Simon lacked the legal authority to make such a gift. If so, Guttmann's claim of title is defective and his status as a <i>muḥzak</i> is of no significance.
  The bylaws of the <i>Hochschule</i> indeed provided that such matters be subject to determination by the <i>Kuratorium</i> as a whole and were not to be within the domain of any single officer.34<i class="footnote"><i>Statut der Lehr-Anstalt für die Wissenschaft des Judenthums</i> §§ 6, 8 (1907) gives the board the power to act as agent for the institute in dealings with third parties and the obligation to oversee the financial affairs and property of the institute. This document is annexed to Defendants’ Affidavits in Opposition to Plaintiffs’ Motion for a Preliminary Injunction, <i>Abrams</i> v. <i>Sotheby Parke-Bernet,</i> No. 42255/84 (N.Y. Sup. Ct. Aug. 14, 1984).</i> Nevertheless, this argument would not necessarily defeat Guttmann's claim of ownership. Professor Guttmann candidly conceded that he had no knowledge of any action by the <i>Kuratorium</i> and was ignorant of any bylaw requiring such action. Guttmann simply assumed that Veit Simon had the authority to act as he did. Such a presumption appears to be entirely compatible with the provisions of Jewish law. The general presumption is that a person in possession of chattel lawfully enjoys the prerogatives he asserts with regard to such chattel. According to Guttmann, Veit Simon clearly asserted that he had the authority to dispose of the books and manuscripts. The fact that he delivered those items to Guttmann with the knowledge and assistance of both the Secretary and the Librarian of the <i>Hochschule</i> lends credence to that assertion. Hence it must be assumed that Veit Simon's colleagues on the <i>Kuratorium</i> either specifically authorized his action or that, since formal meetings were forbidden by the German authorities and were extremely dangerous, the members of the <i>Kuratorium</i> delegated their responsibility to Veit Simon and authorized him to act on their behalf without prior consultation. The burden of proof in adjudicating a claim of irregularity with regard to an obstensibly legal action is upon the plaintiff.
  Nevertheless, despite the distinct advantages enjoyed by the <i>muḥzak</i> in Jewish law, possession is not always prima facie evidence of ownership. At times, other principles are dispositive. When neither claimant is in actual possession of the disputed property, or when possession is not regarded as evidence of ownership, evidence of prior ownership generates a presumption of continued ownership.35<i class="footnote">This principle is known as <i>ḥezkat mara kamma.</i> For a general discussion of this principle, see <i>Encyclopedia Talmudit,</i> XIV, 147-74.</i>
  To be sure, the general rule regarding chattel is that when one litigant is in possession, his status as <i>muḥzak</i> prevails against evidence of prior ownership. However, in certain limited situations that is not the case. One notable exception to the probative value of <i>muḥzak</i> is found in the claim of an artisan to ownership of artifacts in his custody. As recorded in <i>Shulḥan Arukh, Hoshen Mishpat</i> 134:1, the rule governing such situations is that possession does not constitute <i>prima facie</i> evidence of ownership of items which an artisan customarily accepts for purposes of repair since the artisan's possession of those items is readily explainable on other grounds. The same principle would assuredly apply to raw materials customarily provided to a worker employed in a cottage industry. Presumably, the principle would also apply to a laborer who uses his employer's tools and who, in the course of his labor, customarily removes those tools from his employer's premises. Under such circumstances, physical possession of the tools would not serve to support a claim of title. <i>Mutatis mutandis,</i> a scholar who is customarily entrusted by his employer with library materials for the purpose of facilitating his research, would not prevail on the basis of his status as a <i>muḥzak</i> in a dispute regarding ownership of such items.
  Whether or not Guttmann enjoyed "artisan" status in relation to the disputed books and manuscripts depends largely upon (1) whether he was actively engaged in research, (2) whether those items were directly related to his research, and (3) whether the <i>Hochschule</i> ordinarily entrusted materials of a like nature to members of the faculty for use in their homes or offices in conjunction with their research. It is, however, unlikely that all the items in dispute were related to Guttmann's scholarly research. It is certainly unlikely—but not impossible—that the rarest items, viz., the Prague Bible and the illuminated Spanish High Holiday prayer book, were related to any academic project in which Guttmann, a professor of rabbinics, may have been engaged. To defeat Guttmann's reliance upon the principle of <i>muḥzak,</i> the plaintiff must prove that the books and manuscripts were related to Guttmann's research and that Guttmann was, in effect, an artisan.36<i class="footnote">It should be noted that there is a more fundamental reason why the claim that Guttmann is an artisan who cannot prevail on the basis of <i>muḥzak</i> would fail to support the pleading submitted by the Attorney General. As recorded in <i>Shulḥan Arukh, Ḥoshen Mishpat</i> 134:1, the original owner prevails over an artisan upon the claim that he delivered the property to the artisan for “repair.” <i>Shakh, Shulḥan Arukh, Ḥoshen Mishpat</i> 134:2, points out that a prior owner would not prevail with a claim that he lent or leased the disputed item to the artisan. Nor, presumably, would the prior owner prevail with a claim that the artisan had stolen the object in question. Accordingly, in order to prevail against Professor Guttmann, the prior owner would have to claim explicitly that the books and manuscripts were delivered to him for use in his research, but a prior owner would not prevail with a claim that they were delivered to him merely for safekeeping. The underlying principle is that the claim must be that the chattel was delivered for a purpose associated with the artisan’s craft. For an artisan, physical possession of the disputed property does not serve to rebut a claim of such nature. However, the fact that an artisan is a <i>muḥzak</i> does serve to rebut any other claim. Nor does the plaintiff enjoy the benefit of a <i>migo,</i> i.e., the contention that he might have pleaded that the item was delivered to the artisan for a purpose associated with his craft, thereby giving credence to his claim that it was delivered to the artisan for safekeeping. Such a plea is of no avail because <i>migo</i> cannot be invoked against a <i>muḥzak.</i> See Rema, <i>Shulḥan Arukh, Ḥoshen Mishpat</i> 82:12. For a discussion of the principle of <i>migo,</i> see section IV of this chapter.Nevertheless, in the present case, if it is ascertained that Guttmann had the status of an artisan vis-a-vis the books in question, he would not prevail on the basis of physical possession even though there is no actual claim that those items were lent to him for use in conjunction with his research. Indeed, since there are no survivors possessing actual knowledge of the circumstances surrounding the transfer of those items, no one is in a position to refute Guttmann’s contention. Nevertheless, as will be shown later, in such circumstances, the appropriate pleading is entered on behalf of the heirs by the rabbinic court on its own motion (<i>ta’aninan le-yatmi</i>). In acting on behalf of “orphans,” the court enters whatever plea is in the best interest of the heirs who, lacking personal knowledge, are themselves unable to enter a plea. In this case, the rabbinic court would interpose the argument that the books might well have been lent to Guttmann for use in conjunction with his research.</i>
  Another exception to the rule of <i>muḥzak</i>—and one which is more germane in the instant case—is the category of "<i>devarim he-asuyin le-hash'il u-le-haskir</i>—objects that are designed to be lent or leased." As recorded in <i>Shulḥan Arukh, Hoshen Mishpat</i> 133:5, possession of such property does not generate presumption of title. The rationale underlying this provision is readily understandable. Ordinarily, possession combined with claim of title places the burden of proof upon the opposing party because possession constitutes <i>prima facie</i> evidence of ownership. In the usual course of events, it may be assumed that an individual is in possession of an object precisely because he is the rightful owner. No such presumption exists with regard to chattels that are customarily lent or leased since custody of the property can just as readily be attributed to loan or lease. Ordinarily, possession constitutes stronger evidence of title than does prior ownership. However, with objects designed to be lent or leased, evidence of prior ownership establishes a stronger presumption of title than does current possession.37<i class="footnote">Whether or not proof of prior ownership prevails against a successor in due course who is a <i>muḥzak</i> with respect to items which are customarily lent or leased is the subject of a controversy between <i>Shulḥan Arukh</i> and Rema, <i>Ḥoshen Mishpat</i> 133:7. The rule is in accordance with Rema who maintained that a claim of prior ownership prevails even against a successor in due course.</i>
  There is considerable disagreement among early authorities over the precise delineation of this category of chattel. According to some few authorities, most prominent of whom is Rambam, <i>Hilkhot To'en ve-Nit'an</i> 8:9, the category includes only objects that are manufactured or fashioned in order to be lent or leased. Rambam understands the talmudic term <i>asuyin le-hash'il u-le-haskir</i> quite literally as meaning "<i>made</i> for the purpose of lending or leasing." Accordingly, he understands this category as limited to objects such as "large copper pots that are used for cooking in banquet halls," ornaments utilized for the adornment of brides and similar objects produced or manufactured not for the use of a single consumer, but rather, designed to be leased to a succession of users. Excluded, according to Rambam, are all items designed for personal use including those which lend themselves to sharing with others, "for even a person's shirt and his bedclothes and bed may be lent." Nevertheless, Rambam freely concedes that some individuals habitually lend or lease ordinary chattels and hence, if there are witnesses to the fact that the item was loaned or leased on a regular basis, the item is deemed to be included in the category of chattels with regard to which possession does not constitute evidence of ownership. Thus, although books are not among the items which are produced specifically for purposes of lending, nevertheless, books acquired by a lending library would certainly be included in that category even according to Rambam.
  However, most authorities, including Rif and Rabbenu Tam, define the category much more broadly and include in it any item customarily lent or leased to others provided that the object's owner is also known to lend or lease his chattel to others.38<i class="footnote">There is considerable disagreement among early authorities with regard to whether the item must be one which is generally lent or leased, with regard to whether the owner must be known to lend or lease chattel in general or the item in dispute in particular, and with regard to whether the owner must be known to lend or lease chattel to people in general or to the <i>muḥzak</i> in particular. See sources cited in <i>Encyclopedia Talmudit</i>, VII, 150. The normative position adopted by Rema is cited in the text.</i> This view is cited by <i>Shulḥan Arukh, Hoshen Mishpat</i> 72:19. Excluded are expensive items and items of unique value which are not customarily shared with others. A number of authorities take note of the fact that individual sharing practices are highly subjective and accordingly rule that whether a specific item falls within this category must be determined by the judge on a case-by-case basis in accordance with his assessment of the personalities of the litigants and the relationship between them.39<i class="footnote">See <i>Tur Shulḥan Arukh, Ḥoshen Mishpat</i> 72.</i> The determination, declares Rema, <i>Hoshen Mishpat</i> 72:19, is to be made "according to the perception of the judge in accordance with [his assessment of] the plaintiff and the defendant." Thus, unlike the application of most principles of Jewish law, the determination of this point is, in effect, subjective in nature and lies with the judgment of the <i>Bet Din.</i>
  There is certainly strong basis for the argument that books which are customarily lent by libraries and academic institutions to faculty members and students must fall within this category. If so, evidence of prior ownership by the <i>Hochschule</i> might prevail against the evidentiary probity of Guttmann's present possession. The Gemara, <i>Baba Mezi'a</i> 116a and <i>Shevu'ot</i> 46b, records that in a dispute over the ownership of a certain aggadic volume, Rava ruled that the book must be returned to its original owner. Physical possession by the defendant, ruled Rava, was not determinative because the book was characterized as a chattel which is customarily lent to others. Rashi, <i>Shevu'ot</i> 46b, maintains that Rava's ruling applies only to those aggadic volumes which a person "does not study constantly," but not to books in general, because books are not customarily lent to others since they may become damaged through constant use. Most early authorities, however, follow the diametrically opposite position of <i>Tosafot, Avodah Zarah</i> 46b, which states that all sacred books must <i>a fortiori</i> be considered things which are customarily lent or leased because it is a religious duty to lend sacred books to others for purposes of study. It may be assumed that Rashi would concede that reference works which are consulted only sporadically and for brief periods are in a category similar to aggadic works.
  In rebuttal, it may be argued that rare books and manuscripts are not ordinarily lent to individuals for removal from the library premises. Rosh, <i>Shevu'ot</i> 7:5, and R. Menachem Me'iri, cited by <i>Shitah Mekubezet, Baba Kamma</i> 114b, <i>s.v. shema,</i> state that books which are "important" (<i>ḥashuvim</i>) or "desirable" (<i>neḥmadim</i>) are not included in the category of things which are customarily lent or leased. R. Meir of Rothenberg, <i>Teshuvot Maharam Rothenberg,</i> no. 480, issued a similar ruling with regard to manuscripts. Thus it might appear that the rare books and manuscripts in the Sotheby collection are not to be considered books that are customarily lent or leased. Accordingly, since Guttmann was in possession of those items, the plaintiff would bear the burden of proof to refute Guttmann's claim of ownership.
  This conclusion, however, is open to question. It is indeed the case that libraries limit access to rare books and do not allow such volumes to circulate. Nevertheless, it is not entirely unheard of for academic libraries to grant unusual privileges to certain scholars and faculty members. Consistent with Rema's ruling that whether or not an item is deemed a chattel designed to be lent or leased is to be determined on the basis of the court's assessment of the character and relationship of the litigants, a court might very well seek evidence concerning the <i>Hochschule</i>'s policy with regard to such matters and particularly as to whether Guttmann enjoyed such privileges.40<i class="footnote">In a deposition submitted to the New York Supreme Court, Professor Guttmann declared that he was not permitted to remove rare books from the library premises. See Exhibits A &amp; B to the Affidavit of Richard J. Davis submitted in Defendant’s Memorandum of Law in Opposition to Plaintiff’s Motion for a Preliminary Injunction at 14, <i>Abrams</i> v. <i>Sotheby Parke-Bernet,</i> No. 42255/84 (N.Y. Sup. Ct. Aug. 14, 1984).</i> Moreover, given the unusual circumstances of the late 1930's, even rare volumes might have been "designed to be lent" since a prudent librarian might have become convinced that those works would be safer in private hands. Rema's ruling that such a determination is to be made "according to the perception of the judge in accordance with [his assessment of] the plaintiff and the defendant" is certainly germane in this instance. Of particular relevance in reaching such a determination is whether the <i>Hochschule</i> administration entered into, or sought to enter into, similar arrangements with other scholars in order to save at least a portion of the <i>Hochschule</i>'s collection of rare books and manuscripts from the Nazis. A rabbinic court would undoubtedly seek such evidence.41<i class="footnote">Such evidence may, of course, be difficult to obtain at this late date. In depositions submitted to the court, a number of persons associated with the <i>Hochschule</i> and Hebrew Union College testified that none of the other individuals associated with the <i>Hochschule</i> who succeeded in fleeing Germany brought similar rare books or manuscripts with them. See Findings &amp; Conclusions of Law of Defendants at 16, <i>Abrams</i> v. <i>Sotheby Parke-Bernet,</i> No. 42255/85 (N.Y. Sup. Ct. June 14, 1985).</i>
  It must also be stressed that, in accordance with Rema's ruling, in order for the plaintiff to prevail, a rabbinic court would have to find not only that the <i>Hochschule</i> would have lent the items in question under such circumstances, but also that Guttmann would have borrowed them. Rema stresses that the judge must assess the personalities of <i>both</i> the plaintiff and the defendant. Upon the facts of the case the <i>Bet Din</i> might well find it unlikely that a person would risk his life to preserve property belonging to others.
  In an opinion accompanying his injunction restraining consummation of the sale, Justice Robert E. White observed that "it seems likely that Guttmann was one of many individuals who, in the Mosaic tradition, was [sic] charged with the safe transmission of the law and culture of the Jewish people."42<i class="footnote"><i>Abrams</i> v. <i>Sotheby Parke-Bernet,</i> No. 42255/84 at 9 (N.Y. Sup. Ct. Aug. 24, 1984) (order granting preliminary injunction).</i> That observation reflects an ideological assumption which, although common in other cultures, is foreign to Jewish tradition, at least in its application. To be sure, rabbinic literature dating from the talmudic period is replete with references to incidents in which individuals accepted martyrdom in order to disseminate Torah and to transmit the Oral Law.43<i class="footnote">See e.g., <i>Berakhot</i> 60a; <i>Sanhedrin</i> 14a.</i> However, preservation of rare books and manuscripts, whose value is entirely historical and cultural, is in no way comparable to the preservation of the legacy of Sinai. The Torah is the patrimony of Israel and hence its preservation is synonymous with national self-preservation. Since preservation of life takes precedence over other values, including preservation of cultural legacies, Jewish law would disfavor endangerment to life to preserve even the most priceless historical treasure.
  Quite to the contrary, self-endangerment that would not be sanctioned for the purpose of preserving cultural legacies might well be regarded as legitimate if assumed for purposes of securing a livelihood. In a responsum which has become classic in the annals of rabbinic law, R. Ezekiel Landau, <i>Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Yoreh De'ah,</i> no. 10, ruled that hunting, when pursued as a sport, is forbidden because of the attendant danger but is nevertheless permitted to a person who earns his livelihood thereby "since everything which is for the purpose of one's sustenance and livelihood" is permitted by Jewish law. In support of this position, <i>Noda bi-Yehudah</i> cites the statement of the Gemara, <i>Baba Mezi'a</i> 112a, exhorting the timely payment of a laborer's wages. The Gemara cites the verse "for he setteth his soul upon it" (Deuteronomy 24:15) and comments: "Why did he go up on a ladder, hang from the tree, deliver himself to death, if not for his wages?" It is clear, asserts <i>Noda bi-Yehudah,</i> that the Gemara recognizes an exemption from the general prohibition against exposing oneself to danger when the danger is assumed for the sake of earning a living.
  There is little question that had a Jew approached a competent rabbinic authority in Berlin in 1939, informed him that he had the opportunity of smuggling rare books and manuscripts out of Germany in order to preserve them for posterity, apprised him of the attendant danger and requested a ruling regarding the propriety of pursuing such a course of action, the rabbinic decisor would have ruled the action impermissible. Had the interlocutor, however, stated that he was departing for a distant land, that he was impoverished and that his prospects for being able to support a family were bleak, but that he had the opportunity to smuggle rare books out of Germany in order to sell them so that he might support himself and his family, the rabbinic authority's response might well have been positive.
  Accordingly, even if it is determined that the books and manuscripts in dispute were items designed to be loaned insofar as the <i>Hochschule</i> was concerned, the court, in accordance with the dictum of Rema requiring an assessment of the character and disposition of both litigants, could not find for the plaintiff unless it were also to determine that Guttmann subscribed to a value system which would have permitted him to jeopardize his life solely for the sake of preserving historical and cultural treasures.
  One further point must be made concerning resolution of disputes regarding chattels which are customarily lent or leased. Evidence of prior ownership may be invoked against one who is in possession of chattel only when accompanied by a claim that the property was lent or leased to the <i>muḥzak.</i> In terms of normative law, evidence of prior ownership may not be invoked in support of a claim of theft other than against a notorious thief.44<i class="footnote">See conflicting authorities cited in <i>Shulḥan Arukh, Ḥoshen Mishpat</i> 90:11, and the definitive ruling of <i>Shulḥan Arukh, Ḥoshen Mishpat</i> 133:6. See also <i>Shulḥan Arukh</i> and Rema, <i>Ḥoshen Mishpat</i> 357:1.</i> A claim that the property was delivered to the <i>muḥzak</i> simply for safekeeping would not prevail against a <i>muḥzak</i> except on the basis of <i>migo</i>,45<i class="footnote"><i>Migo</i> is of no support with regard to a claim of simple theft since there is a strong presumption in Jewish law that an individual will not commit an act of theft. See <i>Shulḥan Arukh, Ḥoshen Mishpat</i> 133:6.</i> that is, only when a claim that it was delivered to the <i>muḥzak</i> as a loan would prevail were such a claim to have been advanced. Accordingly, the argument to be made against Guttmann is not that the books and manuscripts were delivered to him simply for safekeeping but that they were lent to him for his own use until such time as they might be restored to a relocated <i>Hochschule.</i> Hence, in determining whether a prior owner would prevail, a finding of whether the books and manuscripts were customarily lent under the circumstances prevailing at the time becomes a matter of crucial significance.
  The Attorney General did not claim that the <i>Hochschule</i> books were loaned to Guttmann; rather, he claimed that they were entrusted to Guttman for safekeeping. Such a claim is ordinarily recognized by Jewish law only on the basis of <i>migo.</i> In order to prevail on the basis of <i>migo,</i> the argument that chattel was loaned to Guttmann would have to be of sufficient force to prevail had it been advanced on its own merit. Indeed, were an argument that the property was a simple bailment to prevail, the very concept of <i>muḥzak</i> would be rendered a nullity. Such a claim, were it to be entertained, would prevail regarding objects customarily deposited with bailees. That category—unlike the category of items customarily lent or leased—is virtually all-encompassing. In the instant case, however, this point is irrelevant. Under Jewish law, the court, acting on behalf of the heirs, would on its own motion advance the claim that the books had been lent to Guttmann; there would be no need to assert that they were delivered to him for safekeeping as the Attorney General concluded. If the books were designed to be lent or leased, a claim of prior ownership would ordinarily prevail, and the burden of proof would shift to Guttmann.
  Despite the foregoing, the fact that the books and manuscripts were items customarily lent is not in itself dispositive. The principle of <i>muḥzak</i> may yet apply even if the books and manuscripts are judged to fall within that category. <i>Shakh, Hoshen Mishpat</i> 72:91, raises a serious question: How can a person who has purchased an item of this nature ever establish proof of valid title? The original owner can always falsely claim that the item was not sold but merely loaned or leased and recover the item from the <i>muḥzak</i> on the basis of proof of prior possession. <i>Shakh</i> responds by asserting that a claim of purchase will prevail against a prior owner of chattels customarily lent or leased provided that the claim is asserted immediately upon discovery of the object in the possession of the <i>muḥzak.</i>46<i class="footnote">See also R. Yechiel Michal Epstein, <i>Arukh ha-Shulḥan, Ḥoshen Mishpat</i> 72:43.</i> Under such circumstances, the <i>muḥzak</i> enjoys the benefit of <i>migo,</i> that is, he might have concealed the object in question.47<i class="footnote">Cf., however, R. Yonatan Eibeschutz, <i>Urim ve-Tumim</i> 72:35 and <i>idem, Klalei Migo,</i> sec. 34, who disagrees with <i>Shakh</i> and rules that a claim of purchase regarding objects which are customarily lent or leased can never be asserted against a prior owner on the basis of current possession.</i> Had the item been concealed there would have been no occasion for litigation. However, once an object that is customarily lent or leased is known to be in a person's possession, that person can no longer assert a claim to title based on purchase. Presumably, the same considerations apply to gratuitous transfers. Thus, even assuming that the items are those which are customarily lent or leased, one might argue that Guttmann should prevail by operation of the <i>migo</i> of concealment. However, this argument is readily rebutted. Guttmann, it would appear, cannot rely upon a <i>migo</i> of concealment since, at this point in time, the value of the books and manuscripts to him lies solely in their saleability. It would have been impossible for Guttmann to sell the books and manuscripts without both the sale itself and the fact that the books were originally part of the <i>Hochschule</i> library becoming public knowledge. Hence, it may be contended that Guttmann cannot rely upon a <i>migo</i> of concealment. Accordingly, were it established that the books fall within the category of things customarily lent or leased, the prior owner would prevail.48<i class="footnote">See R. Jacob of Lissa, <i>Netivot ha-Mishpat</i> 72:34, who states that <i>Shakh</i> must be understood as ruling that a claim of purchase is sustained by <i>migo</i> only if the item is gratuitously displayed before the witnesses, but not if, for example, the person seized thereof dons a garment “for his own benefit” and only upon becoming aware of the presence of witnesses who recognize the garment as the presumed property of another does he declare that he has acquired title by virtue of purchase. Under such circumstances, asserts <i>Netivot ha-Mishpat,</i> there exists no <i>migo</i> of concealment. According to <i>Netivot ha-Mishpat,</i> adjudication of the question of whether or not a valid <i>migo</i> exists is in every case contingent upon “the assessment of the judges” with regard to whether the litigant might have concealed the object without prejudicing his own interests.</i>
  IV. Zuto shel Yam as an Alternative Pleading
  As noted above, there is considerable question whether any person might have entered the library of a Jewish institution in Berlin in 1939, removed books and manuscripts, and thereby have acquired valid title on the basis of the <i>zuto shel yam</i> principle, that is, on the basis of the consideration that property facing imminent destruction is already deemed <i>res nullius.</i> Ostensibly, however, resolution of this question is irrelevant insofar as Guttmann is concerned. Professor Guttmann is barred from establishing a claim to title on the basis of such a pleading because of his own contention that the disputed items were delivered to him in an attempt to prevent them from falling into Nazi hands. By Guttmann's own admission, destruction of the books was not imminent. The sole issue is whether these items were conveyed to him as a gift or accepted by him as a bailment. Had Guttmann taken possession of those items to preserve them for the bailor, he could not later claim to have acquired title to property which was <i>res nullius.</i>
  Nevertheless, the question of whether Gutmann might prevail had he advanced the claim that he simply took the books, intending to keep them for himself in order to prevent them from falling into the hands of the Nazis, may well be dispositive even though Guttmann has conceded that this was not the case.
  Jewish law incorporates the principle of <i>migo</i> in assessing the merit of certain pleadings. This principle has the effect of assigning a litigant the advantages of alternative pleadings which have not been advanced. Indeed, the litigant is granted not only the benefits of a foregone pleading but even the benefits of a pleading which is concededly false.49<i class="footnote">The principle of <i>migo</i> is somewhat similar to pleadings in the alternative which are a feature of other legal systems. The American legal system permits pleadings setting forth two or more statements by way of claim or defense which are not only inconsistent, but are mutually exclusive. The singleness requirement of the writ system that prevailed in early common law would have rendered the very notion of <i>migo</i> inconceivable. Under that system, a defendant might have several, possibly noncontradictory defenses for a particular count and yet be forced to select one of them and abandon the others. If he chanced to lose on the defense he selected, the fact that he might have succeeded on another defense would have been of no avail. This barrier was removed by statute in 1705. 4 Anne ch. 16, § 4 (1705). Subsequently, a defendant was permitted to interpose several pleas to the same court with no requirement that these pleas be consistent with each other.The famous Case of the Kettle, which is part of the folklore of the common law, probably best exemplifies the admissibility of inconsistent alternative pleading. The plaintiff claimed damages for a kettle which he asserted the defendant had borrowed and had allowed to become cracked while in his possession. In answering that complaint, the defendant is reported to have pleaded: (1) that he did not borrow the kettle; (2) that the kettle was never cracked; and (3) that the kettle was cracked when he borrowed it. See C. Keigwin, <i>Precedents of Pleading at Common Law,</i> 270 (1910).Whatever the sufficiency of alternative pleading in the past, under Rule 8(e)(2) of the Federal Rules of Civil Procedure and the provisions of other modern procedural codes, such pleading is perfectly proper although, for obvious reasons, such inconsistent pleadings are seldom advised. In Jewish law the alternative pleading need not actually be advanced; the rabbinic court assigns the advantages of the foregone pleading by operation of law.</i> For example, a claim of prior repayment is not a good defense against the execution of a promissory note when a properly executed note is produced. The allegation of earlier repayment is deemed rebutted by the assumption that a debtor would not allow a creditor to retain possession of an instrument securing a loan which has been repaid. Rather, the debtor would withhold payment until the note is delivered to him. However, unless the signatures of the attesting witnesses are authenticated, the defendant will ordinarily prevail if he claims the instrument is forged. A blameless defendant who, contrary to usual practice, has satisfied his indebtedness but has neglected to retrieve his promissory note is faced with a difficult choice: He may candidly concede the authenticity of the instrument and lose the case because his plea of prior payment cannot be accepted, or he may falsely claim the instrument to be a forgery in order to exonerate himself from payment of funds that he no longer owes. <i>Migo</i> effectively gives the debtor the advantage of pleadings he does not wish to advance for reasons of truthfulness. Since a pleading of forgery would have been sustained had it been made, a pleading of prior repayment will also be accepted and, by operation of law, given the same consideration as a pleading of forgery. The operative principle is that if the litigant was untruthful in advancing a claim of prior payment, he might have availed himself of a simpler and more direct falsehood by denying that a debt had ever existed and claiming that the instrument upon which the plaintiff relied was a forgery.
  A similar principle may operate to the advantage of Guttmann. If Guttmann's claim of title by gratuitous conveyance does not prevail, it is because of a halakhic determination that the disputed books are things which are customarily lent or leased. If so, physical possession is not sufficient to overcome a claim that the items were delivered as a bailment, since that claim is supported by evidence of prior possession.
  However, prior possession would not defeat a claim to title by Guttmann predicated upon the principle of <i>zuto shel yam.</i> To be sure, as earlier indicated, the facts alleged by Guttmann serve to negate any possible invocation of the <i>zuto shel yam</i> principle. Nevertheless, Guttmann may yet avail himself of the advantages of contrafactual invocation of the <i>zuto shel yam</i> principle through <i>migo.</i> Were it to be established that a pleading of facts compatible with <i>zuto shel yam</i> would prevail, Guttmann would be entitled to whatever advantage he might have gained based on that pleading even though the pleading he advanced cannot prevail on its own merits.
  The principle of <i>migo,</i> however, is not universally applicable. The advantages of foregone pleadings are available only to a defendant, not to a plaintiff. To put the same principle more precisely, the advantages of <i>migo</i> are available only to confirm possession of property but not to force a transfer of money or chattel (<i>migo le-hozi lo amrinan</i>).50<i class="footnote">See Rema, <i>Ḥoshen Mishpat</i> 82:12.</i> At first glance, this constraint upon the application of <i>migo</i> should not bar its use to Guttmann's advantage since he is in actual possession of the disputed property. There is, however, some controversy among early authorities with regard to whether the advantages of <i>migo</i> may be employed against a claim of prior ownership. <i>Tosafot, Baba Batra</i> 32b, followed by a number of other talmudic commentators, asserts that the question of the efficacy of <i>migo</i> in the face of evidence of prior ownership is the subject of a disagreement between Rabbah and Rav Yosef concerning ajudication of a dispute involving conflicting claims to real property. The Gemara, <i>Baba Batra</i> 32b, rules in accordance with the opinion of Rabbah who maintained that the principle of <i>migo</i> is applicable even in such circumstances. This rule has been codified by both Rambam, <i>Hilkhot To'en ve-Nit'an</i> 15:9 and <i>Shulḥan Arukh, Hoshen Mishpat</i> 146:25. <i>Tosafot, ad locum,</i> also maintains that the benefits of <i>migo</i> prevail against evidence or prior ownership, but only when the litigant seeking to prevail on the basis of <i>migo</i> is in possession of the disputed property.51<i class="footnote">See also R.Yom Tov Halperin, <i>Teshuvot Malbushei Tom Tov</i>, I, <i>Even ha-Ezer</i>, no. 15, <i>s.v. ha-yoẓeh.</i>It may be noted that this qualification is disputed by the author of <i>Shev Shemateta</i> 4:24 and <i>Keẓot ha-Ḥoshen</i> 82:13, who maintains that <i>migo</i> may be invoked against a claim of prior ownership even when the pleading is not advanced by a person actually in possession of the disputed property. However, this issue is not relevant insofar as the Sotheby sale is concerned since Guttmann is clearly in possession of the disputed property.</i>
  V. Ownership of Communal Property
  Finally, a basic question which must be answered is whether there exists a plaintiff who is in a position to advance a claim against Guttmann. Were the books in dispute property which had formerly belonged to a private party, according to Jewish law, only the original owner or his heirs would be entitled to sue Guttmann for recovery of the property. In the unlikely event that no living survivor could establish even a remote degree of kinship, the property would have become <i>res nullius</i> upon the demise of the original owner and his heirs and, at that point, Guttmann could have acquired title. The argument might be made that the <i>Hochschule</i> is defunct and its property rendered <i>res nullius.</i> Arguably, since there is no concept in Jewish law of a "successor institution," there exist no surviving heirs who may claim to have inherited the property of the <i>Hochschule.</i> Hence, Guttmann would be entitled to retain what, in effect, became ownerless property.
  Such a contention, however, is not supported by Jewish law. In Jewish law, corporations and organizations lack capacity to hold property as "legal persons." Property must be held by individuals, otherwise it is ownerless. Corporations, at least for purposes of holding property, are regarded in Jewish law as partnerships.52<i class="footnote">See, for example, R. Ya’akov Breisch, <i>Teshuvot Ḥelkat Ya‘akov,</i> III, no. 191. For a discussion of the status of corporations in Jewish law see Aaron Kirschenbaum, “Legal Person,” <i>Encyclopedia Judaica,</i> X, 1567-70. See also R. Judah Asad, <i>Teshuvot Mahari Asad,</i> no. 124; R. Moses Schick, <i>Teshuvot Maharam Shik, Yoreh De’ah,</i> no. 158; R. Shlomoh Kluger, <i>Ha-Elef Lekha Shlomoh, Oraḥ Ḥayyim,</i> no. 238; R. Eleazar Meir Preil <i>Sefer ha-Ma’or</i> (Jerusalem, 5713), no. 25; R. Saul Weingurt, <i>Yad Sha’ul</i> (Tel Aviv, 5713), pp. 35-49; R. Yitzchak Ya’akov Weisz, <i>Teshuvot Minḥat Yiẓḥak,</i> III, no. 1; R. Moshe Sternbuch, <i>Mo’adim u-Zemanim,</i> III, no. 269, note 1; R. Menasheh Klein, <i>Mishneh Halakhot,</i> VI, no. 277; R. Yitzchak Wasserman, <i>No‘am,</i> III (5720), 195-203; R. Shlomoh Zalman Auerbach, <i>Ha-Ne’eman,</i> Tishri 5723, pp. 6-10 and 12; and R. Samuel Hibner, <i>Ha-Darom,</i> no. 24 (Tishri 5727), pp. 108-16. Cf., however, R. Raphael Katzenellenbogen, <i>Yavneh,</i> III, no. 7-12 (Nisan 5709), pp. 175-79, reprinted in <i>Na’am,</i> XII (5729), 322-31, and subsequently reprinted in R. Raphael Katzenellenbogen, <i>Be’er Ro’i</i> (Jerusalem, 5742), no. 25.</i> Similarly, communal property is deemed to be held in partnership by members of the community.
  This principle and its application to the property of the <i>Hochschule</i> is illustrated by the provisions of law which apply to the sale of synagogue buildings. The Gemara, <i>Megillah</i> 26a, declares that synagogues located in metropolitan areas cannot be sold. Rashi and Rashba, in their respective commentaries explain that ownership of such property is not vested solely in the inhabitants of the city; rather, "everyone" has a proprietary interest in the synagogue property. Hence, since it is impossible to secure the acquiescence (either personally or through communal officers acting as agents) of each and every person who enjoys a proprietary interest, including those living in distant areas, the property cannot be alienated. <i>Tosafot,</i> Rashba, and Rabbenu Nissim, <i>ad locum,</i> explain that all persons who contribute to the construction of a house of worship acquire a partnership interest therein. The synagogue of a village or hamlet is customarily erected solely with funds contributed by local inhabitants, and hence, can only be sold with the acquiescence of the local population or their designated representatives. In large cities, funds for the construction of a synagogue are customarily solicited not only from local residents but also from travelers and others who are not residents of the city. Since, with the passage of time, those contributors can no longer be identified, such edifices cannot be sold. In another formulation of the distinction between metropolitan synagogues and those located in other areas, <i>Tosafot, ad locum,</i> and Rosh, <i>Megillah</i> 4:1, explain the matter somewhat differently. These authorities explain that the benefactors intend title to be vested in all worshippers who use the edifice on a regular basis. A worshipper who relocates elsewhere does not automatically forfeit his proprietary interest. Thus, since in a large city it is impossible to locate each and every one of the vast number of people who at one time were regular worshippers, the synagogue of a metropolitan area cannot be sold.53<i class="footnote">Other reasons for the restriction against the sale of synagogue buildings in metropolitan areas are advanced by Rambam, <i>Hilkhot Tefillah</i> 11:16, and by Rashba and Rabbenu Nissim, <i>Megillah</i> 26a. Those reasons have the effect of expanding the prohibition to preclude the sale of such edifices under all circumstances but do not negate the considerations advanced by the authorities who countenance sale in some limited and unlikely situations, viz., in situations in which agreement to the sale by all benefactors and previous worshippers is forthcoming.</i>
  The various lines of reasoning advanced by each of these authorities appear to apply to the property of the <i>Hochschule.</i> The institution and its library were established and supported by the <i>Gemeindesteuer,</i> a communal tax levied upon all German Jews, and through the beneficence of Jews throughout the world. The benefactors certainly intended that the resources of the library be placed at the disposal of all scholars who might avail themselves of its facilities. Although authority to buy and sell property for the benefit of the institution may well have been vested by those benefactors in the officers and members of the board of the <i>Hochschule,</i> in Jewish law, title remains vested either in the benefactors or in the intended beneficiaries and their respective heirs. The property therefore remains a charitable trust to be utilized for the purposes intended by the benefactors.54<i class="footnote">This certainly appears to be the position adopted by <i>Seridei Esh,</i> III, no. 71, with regard to the property of the defunct Hildesheimer Seminary.</i> At most, Guttmann might claim that, as the sole surviving member of the faculty of the <i>Hochschule,</i> and as the designated custodian of the books and manuscripts in his possession, he is entitled to the prerogatives of an <i>apotropus</i> or trustee and, in that capacity, he may claim the right to choose a successor, that is, he may designate the institution which is to be awarded custody of those items for the continued use of scholars.
  Nevertheless, as shown earlier, absent a finding that Guttmann has the halakhic standing of an artisan or a finding that the books and manuscripts in dispute are in the category of "items customarily lent or leased," Guttmann's claim that the items in his possession were presented to him as a gift would prevail unless that claim were to be refuted by contradictory evidence.
  In addition to its religious character, Jewish Law was also the national law of the Jewish people, because the entire chain of its evolution was the creative invention of that people. In this regard, Jewish Law differs from other religious legal systems, such as Canon Law or Moslem Law, which were not fashioned and developed by any single people but by the believers, Catholic or Moslem, among different peoples. Throughout its diaspora the Jewish people has regarded Jewish Law as its national law, the characteristic and essential part of its cultural possessions as a people and a nation.
  with regard to a situation such as presented by counsel for the appellant in his stated question … for the limited purpose of giving validity to such a marriage, it is proper to defer to the foreign national law (lex patriae) of the parties at the time of their marriage, which only recognizes marriages celebrated in a special civil form, the other national law which the parties then had and which has continued to be their law up to the present, that is Jewish law.
  It is almost superfluous to explain today—what must now be plain to all—that the Jews, even after they were exiled from their country, never became, in their own eyes, a religious sect. According to their own assessment, they never ceased to be a nation whose place is among the other nations of the world. The absence [of the nation] from its own country, to which its sons continued to be faithful, was temporary and [the nation] carried with it, through all its wanderings and during all periods of its exile, the enduring treasure of its culture and its national possessions; Jewish law is among those possessions.
  However, during the long period in which the Jews were compelled, in the lands of their dispersion, to confine themselves within the walls of the ghetto, Jewish law assumed more and more of a religious form. But at no time did it cease for this reason to be the national law of the Jews even after that wall had been breached and [the Jews] entered the broader world….
  … [T]he very moment that we admit—as we are obliged to admit—the continued existence of the Jews, in all generations and in all the lands of their dispersion, as a separate people, we must test the nature of Jewish law by the historic relationship of the Jewish people to this law. We are then compelled to conclude that the Jewish people indeed treated Jewish law throughout their historical epochs and throughout their dispersion as their unique property, as part of the enduring treasure of their culture. That is to say that this law served in the past as the national law of the Jews, and even today it bears this national character with regard to Jews wherever they may be.