Bechorot 2: All Are Welcome

By: Rabbi Jay Kelman |

Amongst the many wonderful opportunities and challenges wrought by the return of the Jewish people to the land of Israel is that of running our own State. No longer need Judaism be truncated, focusing on the ritual and individualist aspects of religion. Rather, for the first time in close to 2,000 years issues with which every other nation must deal with have suddenly become issues that the Jewish people can and must grapple with. No longer at the whim of others, we have the blessed opportunity to set policies—Jewish policies—regarding the military, the economy, trade, international affairs, social justice, immigration and minority rights to name a few. 

Many of the great religious Zionist leaders of first-generation Israel, people like Rav Isaac Halevi Herzog, Rav Shlomo Goren, Rav Yehuda Isser Unterman, Rav ben Zion Hai Uziel and of course Rav Abraham Isaac Hakohen Kook, spent much effort trying to figure out how to apply Jewish law to a modern state. And even before the State was created, the Chofetz Chaim, himself a kohen and sensing the footprints of redemption, urged the study of Kodshim so that we be ready to properly conduct the Temple service.  

Having a State that is,—to paraphrase Abraham Lincoln—“of the Jewish people, by the Jewish people, and for the Jewish people” means that we can aspire to create a society as envisioned by the Torah, so much of which has no practical application living in exile. 

But along with the opportunity to greatly sanctify the Name of G-d in establishing a “kingdom of priests and holy nation” in the land “where I will choose do have My presence dwell”, comes many challenges. 

One of the features of Jewish life in exile has been the reliance on “the shabbes goy” who would happily help solve some of the challenges and inconveniences the halacha at times presents. Whether to keep our houses warm (or cold) or our businesses functioning, the friendly shabbes goy was a godsend to Jewish communities throughout the ages[1].

Yet it is hard to imagine that the Torah ideal requires that we need rely on non-Jews in order to properly keep halacha—a system rooted in the Divine and given as a wonderful gift to G-d’s special nation. The Torah, over and over and over again, admonishes us to not to take advantage of the ger [2], the foreigner, to treat him as an equal, even to love him. It is hard to believe that the Torah provided the laws relating to a ger toshav, a non-Jewish resident of the land of Israel, so that he could act as our shabbes goy. It seems quite clear that the Torah wants us to keep the fire department, police force and hospitals functioning even if they be fully staffed by Jews, observe shmitta as described in the Torah, and run our industries without needing a shabbes goy[3]. Would anyone imagine that the army should need to rely on non-Jews to carry out key duties[4]

The tension between the halachic ideal and the halachic reality, between a self-sufficient system of halacha and one in which we must rely on outsiders, is evident in the first Mishna of Masechet Bechorot. 

“One who sells [the fetus of a donkey] to an idolater, although he is not permitted to do so…is exempt from the laws of the firstborn”(Bechorot 2a). 

As we discussed in our last post, the Torah mandates that a first born male donkey be redeemed by giving a sheep to a kohen. However, only a Jewish owned animal is subject to these laws. Hence if one sells his pregnant animal to a non-Jew, one can avoid this requirement. While this exempts one from the laws of peter chamor, it raises a separate problem, relating to Shabbat. The laws of Shabbat require not only that we “rest”, but that all under our domain must also be given a day of rest. This includes our employees and even our animals. So important is this day of rest that Jewish law goes so far as to prohibit lending or renting our animals to non-Jews, lest this lead to the animal being worked on Shabbat. As an extra precaution, recognizing that often the same vendor rents or sells his merchandise, our Sages went one step further and banned the sale of field animals to a non-Jew, lest one accidentally come to rent them an animal (Avodah Zara 15a).

The Mishna records additional cases in which one is exempt from the laws of peter chamor. “One who enters into a partnership with an idolater…and one who gives his donkey to an idolater to look after [and share in the offspring]”. 

In these cases the Mishna does not add the caveat “but it is forbidden to do so”. However, the Gemara basing itself on the teaching of “Shmuel’s father” takes that as a given, at least in the case of a partnership. For Shmuel’s father taught that “it is forbidden to make a partnership with an idolater lest he require him to take an oath and he will take an oath in the name of his idol[5]. The Gemara then extrapolates to the case of giving one’s donkey to an idolater and sharing in the offspring, arguing that it too is forbidden.  

Tosafot notes that there are a number of Gemarot that seem to contradict Shmuel’s father, teaching that one is permitted to enter into a partnership with an idolater. If one were to—in one sentence or less—note the key contribution of the Tosafists to the study of Talmud, it would be the reconciliation of  contradictory Talmudic texts by asserting that the “contradictory” texts are referring to different scenarios. This is in contradistinction to Rashi who focuses almost exclusively on explaining the particular unit before us, seemingly oblivious to any other Gemara relating to the same topic. 

What is most surprising is that in this case Tosafot makes no attempt to reconcile these conflicting Gemarot and simply concludes that these Gemarot disagree with Shmuel’s father. 

Professor Jacob Katz has argued that due to the economic necessity of medieval Jews conducting business with Christians (and in the Middle Ages it was a given that all assumed Christianity was idolatrous) the Tosafists interpreted many Gemarot in a way that would allow such activity[6]. It seems that here too we may have an example of such an approach.

As we return to our land, we look forward to the day when it will be possible for Jewish law to be observed in full, “for the Jews and by the Jews” even as we ensure that Jew and non-Jew alike are treated with the dignity and respect befitting those created in the image of G-d. 

 

[1] The classic work detailing the fascinating history of the shabbes goy is Professor Jacob Katz’s “The Shabbes Goy”: A Study in Halakhic Flexibility, Jewish Publication Society, Philadelphia, 1989. 

[2] The Torah does not define what it means by the use of the term ger. Does it refer to a non-Jewish resident alien, any stranger or one who actually converts to Judaism. From a purely legal, halachic perspective the total equality of the ger is limited by the Mechilta, to a ger tzedek, one who converts to Judaism. Sensitive to the difficulty of conversion we are commanded to be extra kind to him or her. Yet the fact that the Torah uses the generic term is a clear indication that, at least from a moral, ethical perspective we must treat all strangers—Jewish or not—with extra sensitivity and concern. 

[3] At a talk I attended a number of years ago, a leading posek of the Religious Zionist world noted that when his mother passed away at home on Shabbat he called the police as the law prescribes in such a case. He explained that such a law (which I imagine has a Shabbat exemption) is needed to ensure the best possible running of the justice system and hence falls under the rubric of national pikuach nefesh. While one can surely debate such a position, it demonstrates the need for poskim today to examine issues both from a personal and national perspective.  

A similar train of thought is evident in the suggestion to greatly expand the allowance for abortions when one is carrying a deformed fetus. Such an approach would likely results in hundreds, perhaps thousands, of extra births a year as “older” women, fearful of giving birth to a “non-healthy” baby often just avoid pregnancy. Writing these words on Yom Hashoah, this argument takes on especially great resonance.  

[4] As my outstanding halachic editor Rabbi Jonathan Ziring notes, "That was Yeshaya Leibowitz’s argument. However, Rav Neria and Rav Rosen strongly pushed back. They argued that this vision assumed that only Jews would live in an ideal Jewish state.  However, in their view, having non-Jews as part, even integral parts of the state is an ideal. Using non-Jews for certain things on Shabbat was thus an fulfillment of this idea".  

[5] It is beyond the scope of this devar Torah to discuss the distinction—one made by almost all today, consciously or not—between the idolaters of the Talmud and the non-Jews of today. Ironically the most serious halachic issue in having a non-Jewish partner today relates to the laws of Shabbat; how to ensure that one does not derive income from Shabbat revenues and that one’s employees not work on Shabbat. 

[6] In a similar vein Haym Soloveitchik argues that the Tosafists interpreted certain Talmudic passages as giving licence to commit suicide rather than being forced to convert. It was inconceivable, Dr. Soloveitchik posits, that the many Ashkenazic Jews who did so acted inappropriately and hence they found textual support that would justify their behaviour. That this approach is not very welcome in most yeshivot hardly need be stated—where the idea of viewing commentaries interpreting texts based on historical circumstances borders on heresy.