Yet the generally mediocre character of the Meiri's role in the legacy of contemporary Judaism seems to be relieved at one highly problematic point: the attitude towards non-Jews. The latter are treated by the Halacha in a way which can hardly be called humane -- the examples brought by R' Weinberg are but a sample of the harsh Halachic discrimination against non-Jews. [3] This discrimination is, of course, by no means puzzling -- one need only recall that basic Halachic works (the Mishnah, the Talmud and major Rabbinic codices) were written in times when discrimination against people because of their ethnic and religious affiliation was a regular practice. However, as the principles of freedom of conscience and universal equality of people made their way into ethical reasoning and basic legal documents in more and more countries around the globe, discrimination on ethnic and religious grounds became one of the most disdained things in the eyes of modern people. The notion that certain views lead to racism became to modern ethics much what the notion that a certain position leads to solipsism is to epistemology -- though it is logically impossible to prove any of these notions wrong, they are usually fiercely rejected in the respective fields of reasoning.
This situation creates quite a problem for adherents of Orthodox Judaism. On one hand, the vast majority of them live under the influence of Western civilization, where discrimination on ethnic and religious grounds is thought to be contemptible; on the other hand, they profess a deep commitment to the Halachic tradition, of which such discrimination is an integral part.
And here the Meiri often comes to aid: he is perhaps the only Halachic arbiter, from the beginnings of Halachic literature to the present times, whose view on Jewish-Gentile relations represented a large degree of tolerance -- which allows modern Orthodox Jewish authors to assert that the Halachic tradition is not as definitely discriminative against non-Jews as it is often thought to be; some even declare the Meiri's view a possible basis for an explicit and decisive Halachic ruling that nowadays non-Jews should not be discriminated against -- as did, for example, R' Weinberg. To examine whether such assertions are justified, a careful consideration of the Meiri's view on the issue is necessary, and this is the purpose of the present essay.
Though the Halacha is full of outright discrimination against non-Jews, it is probably appropriate to start from laws of a segregative rather than discriminative character -- because this is where the Meiri makes a programmatic statement defining his view on the subject. The first mishnahs of the 2nd chapter of Tractate Avodah Zarah say:
Segregative Halachic laws are divided by the Meiri into two categories: those based on the idolatrous and immoral nature of the Gentiles and those separating between Jews and Gentiles for the sake of separation (speaking of the ban on food cooked by Gentiles and rejecting a certain lenient opinion on the issue, he explained: "For otherwise you will find yourself permitting everything they cook which is not impure, and thus we will turn almost into a single nation!" [10]). The laws belonging to the second category he ruled should be upheld, but concerning the first category he noted that since the non-Jews of his time and place (medieval Christian Europe) did not practice the "essentials of idolatry," this kind of segregative laws does not apply to them. To describe the non-idolatrous Gentiles of his milieu the Meiri coined a new term, essential to his whole view on the matter of Jewish-Gentile relations and unique in the Halachic literature: "[nations] restricted by the ways of religions" (Heb. [umot] ha-gedurot be-darkei ha-datot [11]).
Wherever the term "Gentiles" appears in the Talmud, only idolatrous nations are meant -- nations with which the Sages of the Mishnah and the Talmud were acquainted (and therefore it is their feasts that the Sages mentioned in Tractate Avodah Zarah) -- but nations "restricted by the ways of religions" are another category entirely, and the Talmudic precepts concerning Gentiles do not, as a rule, apply to them.
This gave the Meiri an opportunity to rule, regarding the non-Jews of his milieu, the most of discriminatory Halachic laws (especially on monetary and property issues) inapplicable. His view on these matters is best explained in light of the following mishnah:
"An ox of a Jew which gores an ox of a Canaanite [17] is exempt." They say: whichever way you turn -- if "his neighbor" is meant specifically, an ox of a Canaanite which gores an ox of a Jew should also be exempt; if "his neighbor" is not meant specifically, an ox of a Jew which gores an ox of a Canaanite should also be liable. Rabbi Abahu said: it is written, "He stood and measured the earth; He beheld and drove asunder the nations" [18] -- [God] saw that the Sons of Noah [Gentiles] were not fulfilling the Seven Commandments they accepted upon themselves, and permitted their property to the Jews. Rabbi Jochanan said, it is learnt from here: "He appeared from Mount Paran" [19] -- from Mount Paran [the Giving of the Torah] their property was permitted to the Jews.
(Bava Kama 38a)
To which the Meiri added:
According to what is said in the Gemara, this law applies only to the nations which are not restricted by ways of religions and customs, as the Gemara said of them, "[God] saw that the Sons of Noah [non-Jews] were not fulfilling the Seven Commandments [20] they accepted upon themselves, so He permitted their property to the Jews," as long as they are obliged by these commandments -- therefore, those [non-Jews] who fulfill the Seven Commandments should be treated by us as we are treated by them, and we should not favor ourselves in judgment; now it is unnecessary to specify that this is also the case concerning the nations restricted by ways of religions and customs.
(Beit ha-Bechirah on Bava Kama 37b [21])
From the mention of the non-Jews' violation of the Seven Noahide Commandments in the context of legal discrimination in property matters, the Meiri deduced that the discriminative laws do not apply to those non-Jews who observe these commandments. Then the Meiri went further: if individuals observing the precepts God commanded them should not be discriminated against, people belonging to collectives which live, as a whole, in Godly ways should not be discriminated against, either. The fact that there is no such notion in the Talmud did not baffle the Meiri, since the Sages of the Talmud, in his view, were not acquainted with any such collectives.
The connection between the two notions -- that of the non-Jews observing the Noahide commandments and that of the "nations restricted by the ways of religions" -- is openly expressed by the Meiri in his comment on the Talmudic statement [22] that "Gentiles and [Jewish] shepherds of small cattle [23] should neither be lifted [if they fall in a pit] nor pushed down":
Gentiles and shepherds of small cattle, who generally persist in robbery and are accustomed to it, until they become like those who throw off themselves the yoke of the Torah... we are not commanded to make any efforts to save their lives. And concerning the Gentiles you should inspect again what I said above -- which category of people is meant by the term "Gentiles." I mean, it is spoken of the idolaters not restricted by the ways of religions, for whom every sin and every ugly thing was pleasant; the chief of the philosophers already said, "Kill anyone who has no religion" [24] -- so any of the worshippers of the Godhead, even if he does not belong to the religion, does not come under this law [of being neither lifted from a pit nor pushed down], God forbid; and it has already been stated concerning the resident stranger [ger toshav] -- that is, any [non-Jew] who accepted upon himself the Seven Commandments – that we are commanded to sustain him.
(Beit ha-Bechirah on Avodah Zarah 26a [25])
That is, "worshippers of the Godhead," even if they do not belong to any definite religion (and all the more so if they do) should be treated, according to the Meiri, as the "resident strangers," mentioned in the Talmud, who observe the Noahide commandments, rather than as "Gentiles," by which category the Talmud means only "idolaters not restricted by the ways of religions." The notion of "religion" here is necessarily monotheistic, as opposed to polytheism, which -- together with atheism -- the Meiri deemed not religion in its proper sense, but idolatry: "For both denial of God's existence and belief in others besides Him are idolatry, as denial of His existence brings one to worship heavenly spheres and other celestial objects." [26]
The principle of not discriminating against non-Jews belonging to "nations restricted by the ways of religions" in property matters was expressed by the Meiri on numerous occasions -- for example, in his commentary on the Talmudic statement [27] that a Jewish judge in a case between a Jew and a Gentile ought to find a way to make the Jew win, even if the law is on the Gentile's side:
If one of them [idolaters like those of "ancient times"] litigates against a Jew in a Jewish court -- if a judge is able to make the latter win according to Jewish laws, he should do it; if he is not able to do it, he should try to make him [the Jew] win according to the Gentile norms and customs, for then he can say, "It is according to your own law." But if [the judge] is not able to make [the Jew] not liable by any argument, he must decree him liable and make him pay [to the Gentile], so that they would not say of the Jews, "They favor their folk in judgment." However, those [Gentiles], who are restricted by ways of religions, we should not treat in this manner, but if they come to litigate in our courts, we should not divert from the law in a slightest way, but pereat mundus fiat justicia...
We find that there is a prohibition against robbing idolaters not restricted by the ways of religions, and if a Jew sold himself to them, he may not be taken from them without due compensation; and we are also forbidden to cancel repayment of debts to them. However, one should not search for [an idolater's] lost item in order to return it to him, and moreover, even one who finds his lost item does not have to return it to him, since finding constitutes partial acquisition, and returning it is an act of supererogation, and we should not perform such acts towards one who has no religion; thus it is also concerning [an idolater's] error -- if he errs on his own [and pays more than he should], without any trickery and endeavor from [a Jew's] side, there is no need to return [to the idolater] the sum [he overpaid]... But anyone who belongs to nations restricted by ways of religion and worshipping the Godhead in any way, even if their belief is very different from ours, are not included in these rules, but are completely like Jews in such matters, including [the obligation of] returning lost items and [the ban on] taking advantage of their mistakes, and all other things, without any difference.
(Beit ha-Bechirah on Bava Kama 113a-b [28])
Or another, far more innovative dictum:
Anyone restricted by religious ways comes under the prohibition of defrauding; idolaters, however, are not included in the category of fraternity, which would prohibit defrauding them in commercial dealings. [29] This is the rule our Sages formulated: "Do not defraud each his fellow" [30] -- it speaks of those who are your fellows concerning the Torah and the commandments.
(Beit ha-Bechirah on Bava Metzia 59a [31])
According to the Meiri, non-Jews "restricted by religious ways" are the Jews' "fellows concerning the Torah and the commandments"!
Of his peaceable attitude towards non-Jewish religions, the Meiri even stated that a Jew converting to another religion should not be considered an apostate (min): [32]
One may actively injure apostates and heretics... And one who transgresses [the prohibition of] idolatry is included in the category of apostates. However, all this applies only to those who are still considered Jews, for everyone who is considered a Jew and behaves licentiously, defiling the religion, deserves an extremely severe punishment, because thereby he apostatizes and becomes like one who has no religion; but anyone who leaves the fold altogether and joins another religion should be treated by us as all the members of the religion he joined, concerning every matter except for divorce, betrothal and their ties [that is, family law], as I will explain in its proper place. My teachers ruled thus also.
(Beit ha-Bechirah on Horayot 11a [33])
The last sentence of this Meiri's remark notwithstanding, none of the Halachic arbiters whose works came down to us ruled in a similar vein, and R' Abraham Sofer, with whose notes the Meiri's treatise on Tractate Horayot was published, commented ad loc.: "This is a novelty, analogues to which I cannot find among the Halachic arbiters."
The novelty of the Meiri's approach was so great that centuries later, many rabbis and Halachic arbiters deemed and deem his discourse of "nations restricted by the ways of religions" as a mere smokescreen, designed to avoid the anger of Christian censors and authorities rather then to exclude certain non-Jewish groups from the category of Gentiles discriminated against by the Halacha.
This view might have arisen because of the fact that some of the Meiri's dicta were and are printed in the regular editions of Talmud as glosses to laws particularly offensive to Gentiles -- a role performed otherwise by glosses of unknown authorship whose smokescreen nature is more than clear. Thus, in the Vilna edition of Tractate Bava Kama, the Meiri's dictum, forbidding legal favoritism to Jews in property cases in which non-Jews belonging to "nations restricted by ways of religions and customs" are involved, was printed as a gloss on the Talmudic statement that God permitted the Gentiles' property to the Jews (fol. 38a), while the statements permitting canceling a Gentile's (in the Vilna edition wording, "a Canaanite's") debt and not returning to him his lost item or money he overpaid in a business transaction due to an error (fol. 113b), were provided with glosses by an anonymous author who claimed that these laws were introduced "because the Canaanites behaved licentiously concerning others' property." As Jewish learners of all times perfectly understood that "Canaanites" here were but a euphemism for Gentiles, and as neither the Talmud itself nor any commentary or Halachic source conditioned the applicability of these laws on the actual misconduct of "Canaanites" regarding any property, the smokescreen nature of the glosses on Bava Kama, 113b was perfectly clear -- and it was but natural for doubt to arise regarding the authenticity of the Meiri's dictum, too.
Even as leading a figure in the Rabbinic world as the Chatam Sofer [34] wrote in one of his responsa: "As for the dictum brought in Asefat Zekenim [35] in the name of the Meiri [36] -- it is a commandment to wipe it out, for it did not emerge from his holy mouth." [37] From that time on, the view of the Meiri's dicta as unauthentic gained more and more popularity; in 1960s it was preeminent enough to make R' Weinberg lament that "teachers and ramim [38] whisper in the ears of the students that all this was written because of the censor;" in recent decades the whispers turned into explicit and extensive articles stating the case. [39]
On the other hand, the Chatam Sofer's statement itself is more than puzzling. He mentioned no reason to deem the Meiri's dictum inauthentic -- suppose a state's court judging a case to which a certain law applies and proclaiming without any explanation that the law was never actually passed by the state's legislature... Moreover, the Chatam Sofer never saw the Meiri's treatise on Bava Kama itself -- wherever he mentions in his responsa the Meiri's comments on this tractate, the references are only secondary, to quotes of the Meiri's dicta in Shitah Mekubetzet/Asefat Zekenim. [40] Nor was the Chatam Sofer acquainted with the Meiri's treatise on Avodah Zarah, where the concept of "nations restricted by the ways of religions" is developed and used recurrently -- this part of Beit ha-Bechirah was published for the first time in 1944, more than a century after the Chatam Sofer's death. [41] In fact, the Chatam Sofer's responsa suggest that of all the Meiri's work he was acquainted directly, at most, only with Beit ha-Bechirah on Tractate Megillah [42] -- which is quite understandable, given the fact that of all the Meiri's works, "a minor part only was printed in the 2nd half of the 18th century, and the majority -- since the 2nd half of the 19th century, and especially in the 20th." [43]
Even the Chatam Sofer Institute (Machon Chatam Sofer), which published in 1973 the "Responsa Anthology," containing the notion of the inauthenticity of the Meiri's dictum on Bava Kama 113a, added the comment:
The words of our master, "It did not emerge from his holy mouth," are puzzling, for the Meiri explicitly stated this view numerous times in his works; also, this dictum appears in Beit ha-Bechirah on Tractate Bava Kama (printed according to a manuscript in 1950), on fol. 113b [44] (from which the Shitah Mekubetzet quoted it).
Actually, manuscripts were not always free of emendations intended to avoid the anger of censors and authorities: in Beit ha-Bechirah on Sotah, 47a, [45] the Meiri commented on the Talmudic story of "Jesus the Nazarene" who "bewitched and incited and seduced, and caused Israel to sin," [46] trying to prove that this story deals not with Jesus Christ but with an earlier personage and that the adjective "the Nazarene," added to the name of Jesus in some Talmudic manuscripts, was only a scribal error. However, guided by the principle that "too much caution is never too much," an unknown person wiped many parts of this Meiri comment out of the manuscript, so that it is impossible to recover the text of this comment in full.
And yet, there are more than good reasons to deem the Meiri's view genuine. First of all, not only is it "explicitly stated... numerous times in his works," it is presented as a system with foundations, their explanation and practical conclusions bearing a high degree of consistency. In this aspect the Meiri's view differs cardinally from the ad hoc statements usually printed on the pages of the Talmud as glosses to potentially offensive anti-Gentile statements. R. David Zvi Hilman, the most outspoken (at least in print) champion of the view that the Meiri's dicta are but a smokescreen against Gentile authorities, notes that in some Russian editions of the Talmud the laws discriminatory to Gentiles were provided with the gloss, "All these laws applied only in the ancient era, but now everything should be managed according to the laws of His Majesty the Czar." [47] Now, any person with an elementary Talmudic education would understand that this gloss is no more than a smokescreen: with all due respect to the Russian monarch, no scintilla of the Halachic law provides any base for making a distinction between him and, say, the King of Spain or the Sasanid kings of Persia under whose reign the Babylonian Talmud was compiled; and lest one think that the Talmudic principle "the state's law is [valid] law" is referred to by the gloss, a brief overview of the cases in which the Talmud applies this principle would suffice to show that, according to the Talmud, the state's law is valid only concerning the state's direct and regulated revenues from its citizens (taxes, customs, etc.) [48] and procedures of business transactions [49] -- not in regard to saving a Gentile's life, for example, or a Jewish woman breast-feeding a Gentile child.
Not so with the Meiri's view. Far from ad hoc apologetics, he built a whole system of Halachic reasoning, based on a new term he introduced, using justification common for all Halachic constructs. Granted, this justification is not a triumph of logic -- as will be shown below -- but neither amany verdicts of other Halachic arbiters. For example, the first mishnah of Tractate Avodah Zarah states:
Three days before the feasts of Gentiles, one is forbidden to negotiate business with them, to lend them and to borrow from them money or artifacts, to pay them debts and to receive payment on debts from them... R' Ishmael says: [these acts] are forbidden three days before and three days after [a feast]; the Sages say: [they are] forbidden before, but permitted after a feast.
Rava, one of the sages of the Gemara, explained the prohibition's raison d'etre as the apprehension that a fortunate business transaction performed close to a non-Jewish deity's feast would bring that deity's worshipper to make him thanksgiving -- and a Jew would thus cause an act of idol worship. [50] This explanation was adopted by all the later commentators, including Rashi, who stated it in his first comment on the tractate. The Tosafot ad loc. [51] expanded on the issue:
"One is forbidden to negotiate business with them" -- Rashi explained that it is because [the Gentile] might make on the day of his feast thanksgiving to his deity... It is puzzling, what kind of license people find for themselves to negotiate business on the days of the idolaters' feasts. It can be claimed that the majority of their feasts are those of the "saints" -- but still they have a feast once a week, [52] as it is said [53] that, according to R' Ishmael's opinion, one may never negotiate business with them. [54] And it is impossible to claim that the license [to negotiate business on Christian feasts] comes from what they said, "Gentiles outside the Land of Israel are not idolaters [in the proper sense] but only follow the customs of their forefathers," [55] for Samuel said in the Gemara, [56] "In the Diaspora, it is forbidden [to negotiate business with Gentiles] only on the days of their feasts themselves" -- that is, at least on the feasts' days it should be forbidden. Therefore, it seems that the license comes from the fear of animosity [that the Jews' refusal to negotiate business with Gentiles will cause the latter to hate and persecute them]... However, this cannot constitute a full license... because in this case, it would be permitted only to lend them money or artifacts and to pay them debts if they demand the payment, but it would still be forbidden to negotiate business with them -- that is, to trade -- for regarding this, there are no grounds for animosity, since a Jew can always say, "I need no deal now;" and also [it would be forbidden for a Jew] to borrow money or artifacts and to pay debts if a delay in payment until the feast is over would be accepted by the Gentile. Therefore, the reason for the license seems to be that we know that the idolaters of our milieu do not actually worship idols.
Whatever one thinks of the reasoning power of the Tosafists, it is crystal clear that this ruling hangs on nothing. Only a few lines before their statement, "We know that the idolaters of our milieu do not actually worship idols," the Tosafot referred to the Talmudic ruling which forbids ever trading with Christians – if R' Ishmael's dictum of "three days before and three days after" a feast is accepted -- from which it follows that the Talmud definitely deemed the Christians idolaters, and trading with idolaters, even outside the Land of Israel, should be forbidden at least on the days of their feasts, as the Tosafot themselves noted. The Tosafot gives no reason to presume that the Christians of medieval Europe were so unenthusiastic in their religious practice as to justify ruling them out of the scope of Talmudic ban on negotiating business with Gentiles outside the Land of Israel on the days of their feasts, but would anyone therefore claim that their ruling was merely a smokescreen against censors and authorities?
And though the Tosafot's comment was only a post factum justification of an existing practice, and the commentators tried to vindicate their fellow Jews since they found themselves unable to change their conduct, it should be noted that the Meiri's dicta are of, at least in some cases, the very same nature. Let us recall that one of his programmatic statements regarding Jewish-Gentile relations -- that which refers to the segregative rulings in the beginning of the 2nd chapter of Tractate Avodah Zarah of the Mishnah -- he began with the sentence, "I have seen many people puzzled by the fact that nowadays nobody is careful to observe these laws." Moreover, before commenting on the mishnah, which forbids negotiating business with Gentiles close to their feasts, that "all these rulings were intended about worshippers of idols, images, and statues; but in our time such things are absolutely permitted," [57] the Meiri noted with satisfaction: "But nowadays no one is careful [not to violate the prohibition] on these matters, even on the very days of the [Gentiles'] feasts: neither a gaon, nor a rabbi; neither a sage, nor a disciple; neither pious one, nor one who strives to be pious." [58] Such an open joy on the fact of inobservance of a Talmudic precept would be obviously impossible, did the Meiri view his dicta on "nations restricted by the ways of religions" as merely a smokescreen against the Christian authorities.
Furthermore, the Meiri applied his notion of "nations restricted by the ways of religions" even in cases where it clearly served no apologetic purpose. For example, commenting on Tractate Ketubot 3b, [59] he noted:
A woman who willingly has an [illicit] sexual contact becomes thereby forbidden to her husband, even if her husband is a regular Israelite [that is, not a cohen]. From this matter we learn that this law applies even if she has such sexual contact with a Gentile, be the latter even from among those idolatrous ancient [nations], not restricted by the ways of religions -- for a sexual contact with a Gentile is enough a sexual contact to forbid her husband further sexual contacts with her.
If he intended the notion of "nations restricted by the ways of religions" to be a mere smokescreen, why would the Meiri use it here, where no need for it exists -- since he ruled an intercourse with any Gentile to be enough to forbid a woman to her husband?
The same question may be asked of the Meiri's following dicta:
We should not prevent poor Gentiles -- even those who are not restricted by the ways of religions -- from picking the ears of corn which one drops when harvesting a field, [60] the sheaves of corn which he forgets at the field, [61] and the fringes which he deliberately leaves for the poor, [62] because of the norms of peace [to endorse peace between Jews and Gentiles].
(Beit ha-Bechirah on Gittin 59a [63])
A Gentile -- even if he is from among the idolaters and the adherents of ancient beliefs, not restricted by the ways of religions -- has the right of inheritance, according to the Torah: he inherits property from his father and other legators, and we do not say that whoever seizes the property [of a deceased Gentile] acquires it thereby, but whoever seizes that property must return it [to the heirs].
(Beit ha-Bechirah on Kiddushin 18a [64])
Or consider the Meiri's comment on the Tannaitic saying, "One should not enter a Gentile's house on a day of his feast and greet him," [65] and on the Gemara's ruling, "One should not double his greeting to a Gentile:" [66]
One should not refrain from greeting an idolater, but neither should he extend in his greeting to the latter more than it is usual [for him] or more than it is customary to greet anyone -- such extending is what I call "doubling a greeting," since when a person extends in his greeting to someone more than he does usually, it shows that [the greeting person] has a special affection and affiliation [towards the one he greets extensively]. And you should already have known that idolatry was especially affecting, because those who worshipped idols gained thereby many benefits, as it is written, "But ever since we stopped burning incense to the Queen of Heaven and pouring wine libations to her, we have had nothing and have been perishing by sword and famine" [67] ...And here I continue what I have written above concerning their saying that one should not enter his [a Gentile's] house on a day of their feast and greet him, since this would bring [the Gentile] to tell [the Jew] about the feast, celebrated in honor of a certain star or "saint," and to speak in detail of its praise -- which may make [the Jew] hesitate in his heart, and thus he may come to a fault. But if [a Jew] meets [an idolater] in a marketplace, he should greet him, even if it is on a day of their feast -- yet the expression of [the Jew’s] face should show [the idolater] no special affection and affiliation, lest [the idolater], having spare time and willing to glorify the deeds of his idols, would start a conversation on these matters with him [the Jew]. In any event, the nations restricted by the ways of religions and believing in God’s existence, unity, and power -- even if they go astray in certain matters from the viewpoint of our faith -- do not come under these limitations.
(Beit ha-Bechirah on Gittin 62b [68])
What could make the Meiri to write the last sentence of this comment, if he did not genuinely champion the view of an improved Halachic status of "nations restricted by the ways of religions"? What would he camouflage thereby from the hostile eyes of the Christian authorities? He had ruled just a few lines above that a Jew should not refrain from greeting any Gentile -- what potential offense to the non-Jews could there be in this passage?
Yet more illustrative in this aspect is the fact that the notion of "nations restricted by the ways of religions" was used in Beit ha-Bechirah not only in regard to Talmudic statements on Jewish-Gentile relationship, but even in purely philosophical context, like the following comment of the Meiri on the Talmudic statement, "Jews are not subject to [the influence of] stars:" [69]
Also, one has to believe that prayer, merits, and charity are capable of changing to good one's fate as it is determined by trajectories of the stars: even if he was destined to die, his life may be prolonged [because of his good deeds], if he was destined to live in sorrow, he may be given joyful life, if grief was destined for him, it may be turned into a feast. To teach us that faith, they coined a rule in regard to this issue: "Jews are not subject to [the influence of] stars" -- and by the term "Jews" they meant anyone restricted by the ways of religions.
(Beit ha-Bechirah on Shabbat 156a [70])
Why would the Meiri bother to specify that Gentiles "restricted by the ways of religions" are above the influence of celestial bodies, if he did not hold this concept -- innovative though it is -- genuinely? Clearly the view that all the Meiri's dicta on "nations restricted by the ways of religions" are only a smokescreen is baseless.
There is only one dictum of the Meiri, regarding which the "smokescreen view" makes sense. It is found in an early edition of Beit ha-Bechirah on Tractate Yoma (printed in Jerusalem in 1885 by Isaac Hirschensohn), where the Meiri's comment on the Talmudic statement [71] obligating one to desecrate the Sabbath wherever such desecration would save the lives of a group of people -- but only if that group includes at least one Jew -- is brought in the following wording:
We should not follow the majority in regard to saving lives. For example, if a building falls on a yard, in which there are both Jews and ancient worshippers of stars and the zodiac -- whose lives we may not save through desecration of the Sabbath, since they have no religion and are not concerned with the duties of human society -- we nevertheless should take the ruins apart [in order to save the Jews' lives], not only if the Jews were the majority of the public there or a half of it exactly, in which case there would be no novelty since doubts in matters of life and death should be judged leniently, but even if [of ten people in the yard] there were nine Gentiles and only one Jew... [72]
This edition of Beit ha-Bechirah was published, as its title page states, according to a manuscript preserved in the library of the rabbi of Ancona, Italy, which the latter gave to the publisher's father. Unfortunately, the manuscript is no longer available, and the question of whether the wording of the printed edition (published, after all, under Gentile rule) fits that of the manuscript remains open. In any event, claiming the Talmudic statement that lives of Gentiles should be saved not because of their own merit, but only if one thereby saves lives of Jews, to refer to "ancient worshippers of stars and the zodiac" who "have no religion and are not concerned with the duties of human society," this version of Beit ha-Bechirah makes an improved Halachic status of certain non-Jewish nations dependent not only on the latter's religious creeds but also on their adherence to moral norms of human society -- which runs contrary to the Meiri's general view. Modern apologetics notwithstanding, [73] the Meiri stated explicitly that "nations restricted by the ways of religions" are for him only those "believing in God's existence, unity, and power" -- moral norms, granted, would stem from a monotheistic belief, [74] but the belief, not morals, provides the basis for the improved Halachic status; as the Meiri himself put it, "One who denies idolatry is as one who accepts the whole Torah, since on this foundation everything is built." [75] (Though Christianity is not strictly monotheistic from Judaism's point of view, it could be deemed monotheistic enough by the Meiri, as it could be deemed a century earlier by Rabbeinu Tam, [76] who apparently ruled that Christianity falls under the category of shituf -- belief in the single God who shares divine essence with other beings, which become thereby a part of the Godhead but are incapable of acting independently of God's will -- a doctrine whose Gentile adepts should not be judged as idolaters, but which is still considered idolatry if held by Jews. [77] On the other hand, the Meiri could derive his knowledge of Christian doctrine from some non-orthodox circles. [78])
Not surprisingly, in the edition of Beit ha-Bechirah on Yoma printed in 1970 in the State of Israel, [79] where a Gentile censor neither existed nor should be feared of, the wording of the dictum in question is:
We should not follow the majority in regard to saving lives. For example, if a building falls on a yard, in which there are both Jews and idolaters -- whose lives we may not save through desecration of the Sabbath, since they have no religion -- we nevertheless should take the ruins apart [in order to save the Jews' lives], not only if the Jews were the majority of the public there or a half of it exactly, in which case there would be no novelty since doubts in matters of life and death should be judged leniently, but even if [of ten people in the yard] there were nine Gentiles and only one Jew... [80]
This wording fits the Meiri’s general view perfectly, and there are all the reasons to see the wording of the 1885 edition as result of a censor's labors or a preventive anti-censor smokescreen -- but both the wording of this dictum in the 1970 edition and all the other dicta of the Meiri in regard to "nations restricted by the ways of religions" should of necessity be deemed genuine.
But even granted that it is genuine, is the Meiri's view based on firm Halachic grounds? To this question the answer is definitely no. First of all, the Meiri's interpretation of the mishnah of Bava Kama 4:3 is puzzling. Of two explanations presented in the Gemara, he adopts only that of Rabbi Abahu, interpreting it not as an assertion of the inferior status of Gentiles in property matters, to which they, as a whole, were sentenced by God because of their failure to observe the Noahide commandments in the Biblical period (which is the plain meaning of R' Abahu's statement), but as a stipulation of the inferior status of any particular Gentile or collective of Gentiles by his or their non-observance of the Noahide commandments – a somewhat exegetical interpretation. (It is interesting to note that in the Jerusalem Talmud [81] R' Abahu explained, in the name of R' Jochanan, that the mishna judged a Gentile's damage to a Jew in accordance with the Gentile laws--apparently, the laws customary in Roman Palestine of the 3rd-4th centuries CE, the milieu in which the Amoraim R' Jochanan and R' Abahu lived. Correspondingly, R' Abahu stated, again in the name of R' Jochanan, that if a Gentile's ox gores an ox of another Gentile, the owner of the damaging ox must pay to the injured party the full sum of the damage, even if both parties want to be judged according to the Jewish law and the goring ox has been totally harmless before -- in which case, were both the parties Jewish, the sum due to the damaged one would be half. This may be understood as a ruling to judge a Gentile's damage to a Jew according to the law customary in the society to which the damager belongs -- but be it the case, there would be no room at all for introducing the Seven Noahide Commandments and the concept of "nations restricted by the ways of religions" into the issue. On the other hand, both the explanation based on the verse of Habakkuk 3:6, brought by Rav, and the one based on Deuteronomy 33, brought by Hezekiah and R'Jose ben Chanina, appear in the Jerusalem Talmud as unconditioned assertions of the Gentiles' inferior status in property matters -- without any mention of the Noahide Commandments. In any event, it is evident that the Meiri paid no heed at all to the Jerusalem Talmud in his dictum on Bava Kama, 37b.)
Not only does the Meiri's dictum of Bava Kama 37b deviate from the plain meaning of the Gemara, it also does not square with explicit Tannaitic sources. The midrash Mechilta de-Rabbi Ishmael, [82] commenting on the verse, "If a man's ox gores his neighbor's ox...", [83] rules:
"A man's ox" -- to exclude the ox of a minor, "a man's ox" -- to include the ox of others. [84] "His neighbor's ox" -- to include [the ox of] a minor, "his neighbor's" -- to exclude the ox of a Gentile, the ox of a Samaritan, and the ox of a resident stranger.
With the term "resident stranger" [ger toshav] the Tannaim designated a Gentile who observes all the precepts of Judaism except the dietary laws (in one opinion), or declares before a Rabbinic court of his commitment to observe the Seven Noahide Commandments (in another opinion) or at least of his denial of idolatry (in yet another one). [85] In any event, if there is a non-idolatrous Gentile, it is the resident stranger. Nevertheless, his status in property matters is inferior compared to a Jew -- just as the status of a regular Gentile is.
Furthermore, the Meiri himself defined the resident stranger as a Gentile who not only renounces idolatry, but also declares before a Rabbinic court of his commitment to observe the Seven Noahide Commandments. [86] Thus the Tannaitic rulings on the inferior status of a resident stranger in property matters deprive the Meiri's dictum on Bava Kama 37b of any Halachic base. Since the Meiri was perfectly acquainted with Mechilta de-Rabbi Ishmael (and even cited it in Beit ha-Bechirah on Pesachim 96a [87]), it is extremely bewildering why he paid no heed to its ruling on the inferior status of the resident stranger -- and this fact, of course, does not lend much Halachic credibility to the Meiri’s view.
But even if the Meiri's ruling regarding the Gentiles who fulfill the Noahide commandments is accepted, it is clear that the Gentiles "restricted by the ways of religions" of his own milieu -- Catholic Christians -- did not fit his own definition of "a pious person from among the nations" [88] and "one who has a religion," for in the Meiri's view, in order to obtain that status a Gentile must explicitly declare his commitment to observing the Seven Noahide Commandments [89] -- something that Christians have never done.
Maybe the Meiri saw a Gentile collective "restricted by the ways of religions" as a whole, a body superior from religious viewpoint to any particular Gentile person of monotheistic belief? Such an opinion has, of course, no Halachic leg to stand upon. And not only that -- the Talmud itself deems the Christians as idolatrous Gentiles as all the others living at that time, in clear contradiction to the Meiri's distinction between "nations restricted by the ways of religions" and those "practicing fervently and persistently worship of idols, stars, and talismans." In the discussion on whether the day of a Gentile feast itself is to be included in the count of the three days before (and according to R' Ishmael, also after) the feast, on which business negotiations with Gentiles are forbidden, the Talmud states:
R' Tachlifa bar Avdimi said in the name of Samuel: according to R' Ishmael, [with] Christians [notzerim] one may never [negotiate business] -- and if we assume that the count [of the three days] includes the festival days themselves, it will follow that [business negotiations on] Wednesday and Thursday are permitted.
(Avodah Zarah 6b [90])
According to this statement of the Talmud, there can be no distinction at all between Christians and the worshippers in overtly pagan cults. Granted, this constituted a grave difficulty for the Meiri, who tried to circumvent it by the following explanation:
Regarding what they said in the Gemara, "[With] notzerim one may never [negotiate business]," I interpret it as referring to the notzerim coming from distant lands, as this term is used in Jeremiah, [91] who called that people notzerim in the name of Nebuchadnezzar; it is well known that in Babylon there was a statue dedicated to the Sun, and all the people of Nebuchadnezzar worshipped it -- and you should already have known that the Sun's term of service [in astrological concepts] is on Sunday. Therefore, they called this day notzeri, because it was the day celebrated by Nebuchadnezzar because the Sun presided over it; this is reasonable and clear.
(Beit ha-Bechirah on Avodah Zarah 2a [92])
Needless to say, this dictum of the Meiri is neither reasonable nor clear. True, the word notzerim is used in Jeremiah 4:16 in the sense of "besiegers" (who "come from a distant land") -- in that sense, however, it cannot be a designation for any cult. Regardless of the Babylonian religion in Nebuchadnezzar's time (the chief deity of which was Marduk, rather than the sun god Shamash), hardly its influence in Mesopotamia of the 2nd-3rd centuries CE, where Samuel and R' Tachlifa lived, could hardly be great enough to make these sages comment on it. On the other hand, both in Palestine (the milieu of R' Ishmael) and in Mesopotamia of that time, Christianity was gaining strength, and given the fact that in numerous places the Talmud refers to the founder of that religion as Yeshu ha-Notzeri and that the saying of R' Tachlifa implies the notzerim to have a feast on Sunday, the rendering of notzerim as Christians becomes more than obvious. [93]
Because the ban on negotiating business with Gentiles close to their feasts is explained by the Talmud as a preventive measure against such negotiations becoming the cause for an act of idol worship, [94] the mention of Christians among those with whom such negotiations are forbidden leaves no possibility but to conclude that the Talmud deemed them idolaters in all respects -- and indeed, Maimonides ruled in his Mishneh Torah that "Edomites [an euphemism for Christians] are idolaters," [95] and the Rashba, [96] ruling that Moslems should not be deemed idolaters, remarked that "all the other Gentiles are idol worshippers." [97]
This leaves no option for applying the concept of "nations restricted by the ways of religions" to Christians, nor is there any Halachic basis for this concept at all. Even the Meiri seems to have understood the problematic nature of his view, since whenever it came to explicit prohibitions of the Torah discriminatory against Gentiles, he did not state clearly that the prohibitions do not apply to the Gentiles of his milieu, preferring instead to leave this question open. In the above quoted dictum on Yoma 84b, regarding the obligation to desecrate the Sabbath if thereby a Jew's life may be saved, he noted that one is forbidden to desecrate the Sabbath in to save the life of an idolater, "since they have no religion" -- but abstained from clarifying whether one must desecrate the Sabbath if a life of a Gentile "restricted by the ways of religions" would thereby be saved.
In Beit ha-Bechirah on Tractate Beitzah 21b [98], the Meiri commented on the prohibition of cooking food for a Gentile on a Jewish feast:
The reason for the ban on cooking food for Gentiles is that this is a labor which does not serve our need for food [on a feast, it is permitted to cook only that food which is to be consumed by a Jew or his livestock during the feast itself]. For we ought not supply them with food, since the term "Gentiles" in the Talmud refers generally to the adherents of ancient idolatrous beliefs. Perhaps one may ask: but even regarding those [Gentiles] it is said in the first chapter of Tractate Shabbat, [99] "One may put food before a Gentile in a yard"... so shouldn't it follow that we ought to supply [the idolatrous Gentiles] with food? The Tosafot explained that because of the norms of peace we ought to supply them with food, but only to a certain extent -- therefore, one may, even on Sabbath, put food which has already been cooked in a yard before [an idolatrous Gentile], since in doing so there is only a minor effort which is forbidden by a Rabbinic decree -- but a [major kind of] labor, like cooking food for them, is forbidden on a feast.
Again, a careful Halachic investigation -- the result of which is permission to violate a Rabbinic decree "because of the norms of peace" for the sake of any Gentile -- but complete silence on the question of whether or not one may cook food for Gentiles whose religious creeds are monotheistic rather than idolatrous on a feast.
Another case is the Meiri's dictum on a Talmudic ruling [100] that if two Gentile twins convert into Judaism and one of them dies leaving a childless wife, his brother needs neither marry his widow according to the laws of levirate marriages nor renounce the duty of the levirate by the procedure called chalitzah:
What I have explained earlier, that Gentiles have no [Halachically recognized] paternal relations, is not due to a doubt -- for generally, their women are whores, whose children may be progeny of someone other than their husbands -- but even if it is spoken of two proselyte twins, who are unavoidably sired by the same father... or if the situation is that a husband and wife have been detained in prison and we know for sure that the same father sired them, the law is that any idolater not restricted by the ways of religions is similar to an animal, who has no [Halachically] recognized paternal relations.
(Beit ha-Bechirah on Yevamot 98a [101])
Here, too, the Meiri relates the law equating Gentiles with animals to "idolaters not restricted by the ways of religions," but refrains from stating unequivocally that to the Gentiles of his milieu the law does not apply -- which leaves open the question of what his verdict would be, were such a case from real life brought to him for judgment.
But far more astonishing in this aspect is the Meiri's following dictum:
However, even in [lending money] to a Gentile for interest there is a certain aspect of commandment and morality, for one should not turn away empty-handed any person who comes to him, although one is certainly not commanded to give him a loan bearing no interest. And there are those who interpret the Sages' saying, "'The Gentile -- charge him usury,' [102] is a positive commandment" [103] as referring to this matter exactly.
(Beit ha-Bechirah on Bava Metzia 71a [104])
First of all, this dictum runs contrary to the Meiri's general view. The Hebrew term for "Gentile" in Deuteronomy 23:21 is nochri, which the Meiri interprets elsewhere as referring to idolaters "not restricted by the ways of religions," whether used in the Mishnah [105] or in the Scripture. [106] Here, however, the Meiri abandoned his method of exemption of Gentiles
"restricted by the ways of religions" from discriminative Halachic laws -- which does not seem so peculiar, given the fact that money-lending to Gentiles was the principal occupation of the Provencal Jews in the 13th century, and the Meiri himself was involved in it on a fairly large scale. [107]
Much more puzzling is the fact that the Meiri tried to derive a moral lesson from the issue and to turn lending a Gentile money at interest into almost an act of charity. Surely the Jews needed no encouragement to engage in what had become by that time one of their major occupations, in Provence and elsewhere. [108] True, the interpretation of the Scriptural license to lend Gentiles money as a positive commandment originated with the Midrash Sifri (where the motives for that commandment were not specified) -- but what could have prevented the Meiri, even if he did not want to define the Scriptural license out of validity in regard to his neighbor Christians or simply to ignore the Sifri's dictum, from interpreting it not as a commandment in and of itself but only as a basis for the prohibition of charging Jews interest on loans (which would make the latter "a prohibition derived from a positive commandment" -- a member of a separate Halachic category), as the Ra’avad interpreted it in his glosses on Maimonides's Mishneh Torah? [109] Was the Meiri's dictum merely an apologetic remark -- a possibility which cannot be dismissed, given the fact that Jewish banking was often the primary and easy target of Christian Jew-baiters? [110] Or was the Meiri genuinely embarrassed by the harsh discrimination against Gentiles in the Halacha and tried to play it down as much as he could? This possibility appears even more reasonable in the light of the Meiri's general approach to the discriminative Halachic laws.
Recall that the Talmudic statement, "Gentiles and [Jewish] shepherds of small cattle should neither be lifted [if they fall in a pit] nor pushed down," [111] was interpreted by the Meiri as implying that there is no obligation to save the lives of "Gentiles," while both the plain meaning and the mainstream interpretation of this statement by the Rishonim are that there is a prohibition on saving the life of a Gentile. [112] Since in the Meiri's view, the "Gentiles" referred to in this statement were not his contemporary Christians (and all the more so not Moslems), such an innovative interpretation was not needed to appease the potential anger of Christian authorities -- and nevertheless it was made. Moreover, to endorse the plain Talmudic ruling that the lives of Gentiles ("idolaters... for whom every sin and every ugly thing was pleasant," in the Meiri's rendering) ought not be saved, the Meiri took pains to appeal to a moral maxim of a Gentile philosopher -- an unprecedented method in Halachic reasoning.
Or consider the Meiri's dictum on Bava Kama 113a-b, [113] in which he explicitly ruled that one may not cancel repayment of debts to Gentiles (again, idolaters for the Meiri): in Talmud, this question is the subject of a disagreement between Abaye and Rava. Given the Talmudic rule that in every dispute between these two rabbis the Halacha follows Rava (except for the six cases abbreviated in Bava Kama 73a, none of which is the issue of canceling the repayment of debt to a Gentile), the Meiri's ruling is quite innovative -- in fact, innovative more than grounded, since the Meiri himself [114] numbered in detail the six cases of disagreement between Abaye and Rava in which the Halacha follows Abaye, and wrote explicitly that in all the other matters the Halacha follows Rava's opinion.
Given all the above, it is not unreasonable to suppose that the Meiri was deeply embarrassed by the cruel intolerance -- at least de jure -- of his religion to other peoples and beliefs, and tried to play it down as much as he could in order to satisfy his own spiritual needs rather than to appease Christian authorities. What caused the Meiri's embarrassment? Was it a spark of humanist outlook kindled centuries before its proper time? Or was the embarrassment caused by comparison of the official Catholic doctrine of toleration of Jews despite, and in some respects because of, their different religious creed [115] with Talmudic rulings deeming a Gentile's life worthless and placing him, in some cases literally, [116] on a par with an animal? The answers to these questions we will apparently never know -- but in any event, the Meiri’s view has an obvious lack of Halachic justification.
This being the case, it is no wonder that no later Halachic arbiter ever fully developed the Meiri's view into a practical Halachic verdict. To be sure, the first parts of Beit ha-Bechirah were published only in the second half of the 18th century, but many of the Meiri's dicta were quoted by later rabbis (a particularly large number of quotations is found in R' Betzalel Ashkenazi's Shitah Mekubetzet), and in Rabbinic responsa of the 16th-18th centuries the Meiri's dicta on different issues are brought hundreds of times -- sometimes rejected in the final verdict, but often serving as one of the grounds upon which the final verdict rests. And in all this plethora of references to the Meiri's dicta, not a single one is made to his statements on Jewish-Gentile relations -- of which at least two (on Bava Kama 37b and 113a) were brought in full in Shitah Mekubetzet.
On the other hand, rulings contradictory to the Meiri's view were made by the most authoritative Halachic arbiters imaginable. R' Joseph Karo, [117] whose rulings were accepted as decisive verdicts by the vast majority of Jewish communities, [118] wrote in his commentary Beit Yosef on R' Jacob ben Asher's Tur [119] (accepted before R' Karo's time as decisive Halachic source by the majority of Jewish communities):
"Lost items of idolaters are permitted" [for a Jew to take for his own]... It is clear that this is the law concerning all Gentiles -- idolaters or not -- for they are not included in the category of "your brother" [to whom, according to the Torah, [120] one must return lost items]. And what our master [R' Jacob ben Asher] wrote, [that one is permitted to take for himself lost items of] "idolaters," should not be understood literally: it is possible that in Christian countries apostates were exciting the kings' hate against the Jews because of this law and the laws like it, and Jewish sages had to answer that all these laws refer only to the Gentiles of the Talmudic Sages' times, who worshipped statues and did not recognize the Creator of the world -- for which they were called idolaters – but the Gentiles of the present times, who recognize the Creator of the world, are not deemed idolaters in regard to this law and the laws like it. It is also possible that [R' Jacob ben Asher] used this wording to generalize this law [and to clarify that it applies also] to an idolatrous Jew, whose lost items are permitted like those of a Gentile.
(Beit Yosef, Choshen Mishpat, 266)
This looks like a direct repudiation of the Meiri's view, though it definitely was not intended as such: all that R' Karo wanted was to clarify the Halachic law in regard to the lost items of Gentiles and to stress that the wording "idolaters" in the Tur should not be taken literally -- either because it was merely a smokescreen against Christian authorities or because it was intended to broaden the scope of the law and to also apply it to Jewish apostates, rather than to narrow the scope and make the law apply to idolatrous Gentiles only. A similar dictum was made by R' Karo in regard to another statement of the Tur:
What our master wrote, "It is forbidden to give a gift to idolaters," should not be understood as [a ruling] that the law does not apply to Moslems, [121] but as [a ruling] that the law does not apply to a resident stranger, whom we are commanded to sustain [122] -- but to the rest of the Gentiles the law applies equally.
(Beit Yosef, Choshen Mishpat, 249)
In fact, the wording "idolaters" in the Tur was not only a smokescreen against Gentile authorities, but also one of relatively late date, not authored by R' Jacob ben Asher himself. In early printed editions of the Tur, as well as in manuscripts, the wording is "Gentiles" instead of "idolaters" [123] -- which only adds Halachic weight to R' Karo's view and renders baseless those few later Rabbinic responsa which sought in the Tur (and the Bayit Chadash commentary on it written by R' Joel Sirkis [124]) support for their view that there is no ban on giving a gift to a Gentile adherent of a monotheistic belief. [125] Regarding the issue of a Gentile's lost item, in any event, R' Karo's ruling was never disputed.
R' Moses Iserless, whose rulings (when discrepant with those of R' Karo) were already accepted as decisive by Ashkenazic Jewry a few decades after his death in 1572, wrote in his gloss on Shulchan Aruch, Choshen Mishpat 348:2:
An idolater's error is permitted -- that is, one may deceive him in calculations or cancel repayment of debt to him, but only if there is no chance that [the deceit] will become known [to the idolater], for in this case there is no possibility for desecration of God’s name. But some opinions state that it is forbidden to deceive him actively, and only a sum he overpaid due to his own error is permitted.
It is crystal clear that the term "idolaters" here is only a camouflage -- the section of Shulchan Aruch on which this gloss is made speaks of "property of Gentiles" in general, and the Tur ad loc., from which R' Iserless took the first statement of his gloss, speaks not of "an idolater" but of "a Gentile" too. [126] And though R' Iserless did not decisively state which of the two views he brought should be treated as practical ruling, both of them contradict the Meiri's view, which demanded that even a sum overpaid by a Gentile due to his own error should be returned to him if he "belongs to nations restricted by ways of religion and worshipping the Godhead in any way." [127]
R' Abraham Gombiner, [128] whose commentary on the Orach Chayim section of Shulchan Aruch became one of the most authoritative Halachic sources for Ashkenazic Jewry, wrote in regard to the text of the blessing after meals:
If there is an idolater at one's home, it is customary to say [in a clause stating that God will bless and assist "us"], "all of us, the people of the Covenant"... yet it is still wrong, since the wording "all of us" applies to all the present [including the idolater]. Instead, one should say, "us, the people of the Covenant, all of us;" the reason for this is that one is forbidden to bless an idolater, as it is written: "Give them no mercy." [129]
(Magen Avraham, paragraph 189, subsection 1)
Here, again, the word "idolaters" is but a camouflage: R' Gombiner spoke of the custom prevalent in his milieu -- 17th-century Poland -- where the only "idolaters" available were Christians. And in R' Gombiner's view, the prohibition to praise Gentiles, derived by the Talmud from the verse "give them no mercy," (which R' Gombiner understood as a prohibition to bless them either) applied to his neighbor Polish Christians, in clear contradiction to the Meiri's position.
And so on -- in hundreds of places in the Halachic literature from the Middle Ages to our days rulings utterly contradictory to the Meiri's view appear, while no verdict, until the 20th century, was based on or made in the vein of the Meiri's approach.
Perhaps the only exception to the above is what R' Moses Rivkes, the author of the Be’er ha-Golah commentary on Shulchan Aruch, [130] remarked on the ruling which forbids both to save Gentiles from death and to kill them actively (when they wage no war on Jews): [131]
The Sages OBM ruled thus only in regard to the idolaters of their times, who worshipped stars and the zodiac and believed neither in the Exodus from Egypt nor in the Creation ex nihilo. But concerning those Gentiles in whose shadow the Jewish nation takes refuge presently, being scattered among them, since they believe in the Exodus from Egypt, in the Creation ex nihilo and in other fundamentals of the religion, and since their intent [in religious practice] is to the Creator of heaven and earth (as the Halachic arbiters wrote and as the Rama specified in his gloss on Orach Chayim, paragraph 156), not only is one permitted to save them from death, but we are also to pray for their well-being...-We should be always at our post to pray for the well-being and the success of the authorities and ministers in all [Gentile] states and territories. And Maimonides issued the Halachic verdict... that even the pious from among Gentiles have their share in the World-to-Come.
But even this dictum bears clear signs of an apologetic discourse rather than of a practical Halachic verdict. Thus, both R' Iserless in his gloss on Orach Chayim 156 and those "Halachic arbiters" on whose verdicts he based his ruling (Rabbeinu Tam [132] and the Rosh [133]), stated only that one may enter into a business partnership with a Gentile -- a Christian, as may be well understood from the context -- because even if the latter is obliged by the norms of partnership to swear about some matter, his oath would be in the name of God, and though by that term he means not only the omnipotent Creator but other entities also, such "association" of other entities with the Godhead is not forbidden to Gentiles, in accordance with the abovementioned doctrine of shituf. Neither R' Iserless nor his predecessors ruled that the Halachic prohibition against saving a Gentile's life does not apply to a Gentile adherent to that belief.
Nor is there any connection between this prohibition and the Mishnaic statement [134] that one should pray for the well-being of Gentile authorities -- the latter refers to any authorities regardless of their religious creeds (in fact, it was coined under the rule of idolatrous Romans), and the Mishnah bases itself solely on the necessity of a well-established rule of authorities for normal existence of human society: "For were it not for the fear of authorities, people would swallow each other alive." Maimonides's famous ruling that the "pious from among the nations" have their share in the World-to-Come refers only to those Gentiles who declare before a Jewish court their commitment to observe the Seven Noahide Commandments, base this commitment on the belief that "God commanded about them in the Torah revealed through Moses," and strictly observe all these commandments. [135] Hardly any Christian or Moslem has ever declared before a Jewish court such a commitment or observed the Seven Noahide Commandments in full.
And finally, both the Talmud [136] and Shulchan Aruch ruled explicitly that one may not save lives of "Gentiles and [Jewish] shepherds of small cattle," and Shulchan Aruch explained that the latter may only not be saved if they are accustomed to committing certain kinds of sins -- for example, pasturing their cattle in other Jews' fields, thereby robbing the field owners of their property. Since Jews who consciously reject the fundamentals of Judaism constitute, according to the Talmud and Shulchan Aruch, another category -- members of which one is not only forbidden to save from death, but obligated to actively kill, directly or indirectly -- it follows that the "shepherds of small cattle" here are Jews who believe in all the fundamentals of Judaism, monotheism and the Exodus from Egypt included. Therefore, it is not the belief in the Creation and the Exodus which makes one's life Halachically worth of being saving, only commitment to and general observance of one's Halachic obligations: 613 Torah commandments for a Jew and 7 Noahide commandments for a Gentile. (A Jew is committed to the observance of the Halachic norms ipso facto by being born as a Jew; a Gentile must consciously and publicly accept this commitment upon himself. And as mentioned above, the Talmud obligates the Jews to sustain -- which obviously includes saving from death -- a Gentile who becomes a resident stranger. [137])
But even if R' Rivkes intended his dictum to be a practical ruling and not merely an apologetic remark, the dictum has had, to this very day, no Halachic influence at all. No mention of it was made in any Halachic codex or responsum, and even later Jewish apologetics seems to have made a very limited use of it.
And apologetics -- unlike the Halacha -- long ago discovered the usage of the "resident stranger" concept as a way to vindicate Judaism in the eyes of Gentiles. Successful or not, apologetic treatises could not, though, invalidate the discriminatory Halachic laws -- only produce references for the next generation of apologists.
Thus, a century before R' Rivkes, the author of a different Be'er ha-Golah -- the Maharal of Prague [138] -- wrote, without mentioning the Meiri's opinion, that "anyone who accepts upon himself to worship the First Cause [alone] becomes thereby a resident stranger" and is not subject to the discriminative laws like that in Bava Kama 4:3. [139] The Maharal's Be'er ha-Golah is, however, defined by its own author as an apologetic treatise, intended to answer polemic claims made against Judaism. [140] It was never used -- nor was intended to be used -- as a Halachic source, and it hardly has a role in mitigating the discriminatory Halachic rulings. Not surprisingly, when it came to Halachic matters, the Maharal's own opinion was different from the one he expressed in Be'er ha-Golah: in his commentary on the Yoreh De'ah section of the Tur, which states unequivocally that only a Gentile "who accepted upon himself the Seven [Noahide] Commandments" is a resident stranger [141] (meaning a monotheistic creed alone is insufficient for that purpose), the Maharal raised no objection on this statement -- which may well testify of his consent to it. And writing in the 16th century, the Maharal made no mention of the Meiri's dicta.
The first Rabbinic author who mentioned the Meiri's view explicitly and sought in it support for his own thesis was R' Zvi Hirsch Chajes, [142] who wrote in his treatise Tif'eret le-Yisrael that "Christians, who believe in the [fundamentals of] religion, in the Torah from Heaven, in the existence of God, in the reward of the World-to-Come and in the rest of the fundamentals and basic principles of faith, are doubtlessly deemed by us as resident strangers" and that "the Seven [Noahide] Commandments are nothing other than norms of the natural law, adopted by both Christians and Moslems in their legal systems." [143] But again, Tif'eret le-Yisrael was provided by its author with the subtitle "An apologetic treatise against the blood libel which is once again being circulated," and it is hardly possible to expect from such a work either Halachic objectivity or any role in determining practical Halachic laws. Indeed, when it came to Halachic matters -- if Christians (and Moslems) were to enjoy the status of resident strangers, the ban on marrying them would be only Rabbinic rather than Scriptural or "a Halachic law given to Moses at Sinai," and Reform Jewish circles used this notion as a basis for their lenient attitude towards intermarriage -- R' Chajes argued vehemently against such notions and devoted much of the "Last Supplement" [144] to his treatise Minchat Kenaot to Halachic rationalization of the notion that neither Christians nor Moslems can be deemed resident strangers.
Half a century after R' Chajes, R' Baruch ha-Levi Epstein, though not mentioning the Meiri's view explicitly, used a similar line of reasoning in his comment on the verse, "If a man's ox gores his neighbor's ox," and the mishnah of Bava Kama 4:3:
This is the wording of the corresponding passage of the Talmud: [145] "They say: whichever way you turn --if 'his neighbor' is meant specifically, an ox of a Canaanite which gores an ox of a Jew should also be exempt; if 'his neighbor' is not meant specifically, an ox of a Jew which gores an ox of a Canaanite should also be liable. Rabbi Abahu said: it is written, "He stood and measured the earth; He beheld and drove asunder the nations" [146] -- [God] saw that the Sons of Noah were not fulfilling the Seven Commandments they accepted upon themselves, and permitted their property to the Jews"...
So you see that according to the Talmud itself, this law does not apply to those nations who observe the Seven Noahide Commandments -- and these are most of the contemporary nations, which should be judged by us as Jews in regard to these matters.
(Torah Temimah [147] on Exodus 21:35)
But again, this portion of R’ Epstein's commentary was defined by the author himself as apologetics against those "Jew-haters who repeatedly defame our early sources, saying that our ancient Sages deemed all the people not belonging to the Jewish religion so insignificant that they deprived those people of their property." [148]
Statements of a similar nature were made by R' Epstein in regard to many other Torah verses from which laws discriminatory against Gentiles are learnt by the Rabbinic sources -- the most illustrative, probably, is his comment on the verse, "And so [to return the loss] you are to do regarding any lost object of your brother," and the Talmudic statements that one may not return a Gentile's lost item [149] but must return the lost item of a Jew who transgresses the Torah's commandments for his own benefit: [150]
All the commentators had written that this law [forbidding the return of a Gentile’s lost item] applies only to [the property of] ancient savage idolaters -- but other nations should be treated as Jews are...
We should return his [a Jewish transgressor's] lost items; and the Talmud specifies that this law applies to one who eats non-kosher meat to satisfy his appetite [a classical Talmudic example of one who transgresses Torah's commandments for his own benefit]... It is accurately deduced from the words "your brother," taking into account what they said, "a Jew, even if he sins, remains a Jew" [151] -- that is, he is still called "your brother."
(Torah Temimah on Deuteronomy 22:3)
There are only two problems. First, none of major Rabbinic authors before R' Epstein (excluding the Meiri) wrote that the ban on returning lost items applies only to the property of "ancient savage idolaters" but not to the property of Gentiles from other nations: mainstream Halachic sources recognize only one reason for returning a lost item to a Gentile -- for the sake of sanctification of God’s name (or in order to prevent desecration of the latter, which is the opposite side of the same coin). [152] And second, from the last sentence of R' Epstein's own dictum it is well understood that what gives a person the right to have his lost property returned is his Jewish lineage as well as his religious observance (which may, in this case, be far from perfect) -- and therefore a person lacking the appropriate Jewish lineage may not be endowed with this right.
Two years after the first publication of R' Epstein's commentary, R' Abraham Isaac ha-Cohen Kook wrote in one of his letters that "the fundamental view is the Meiri's: nations restricted by decent customs [regulating the relations] between a man and his fellow should be considered resident strangers in regard to all human obligations." [153] However, this whole letter bears an unmistakably apologetic character; in the passage where the above statement is made, R' Kook dedicated more than 20 lines to vindication of the view of mainstream Halachic sources, mentioning the Meiri's view only incidentally, without any of the explanation necessary to make a proper Halachic verdict; and actually, R' Kook's statement is quite different from the Meiri's view itself: while the Meiri held that the base for exempting certain Gentiles from discriminatory laws was that they belonged to "nations restricted by the ways of religions" -- monotheistic religions, as shown above -- R' Kook turned it into "nations restricted by decent customs [regulating the relations] between a man and his fellow." [154]
Not surprising, when it came to real Halachic matters R' Kook's position was quite different -- in a responsum dealing with the possibility of a permission to sell or rent real estate to Moslems in the Land of Israel, [155] he ruled that while Moslems may be considered resident strangers to the extent of permitting such sales or renting, they may not be deemed resident strangers in ways that would require the Jews to sustain them as ones of their own people -- that is, "in regard to all human obligations," as he put it in the above letter.
Thus far for apologetics. But of those few Halachic arbiters who paid any attention to the Meiri's view of "nations restricted by the ways of religions," none found it sufficient to build a comprehensive Halachic method upon. The Chatam Sofer was so baffled by the statements brought in the Meiri's name in Shitah Mekubetzet that he deemed them inauthentic -- without any grounds, though, as shown above. However, another statement by the Chatam Sofer is much better grounded and testifies well to his view on the subject:
It is impossible to say... that the Gentiles of our times are not idolaters, for this may be said only in regard to the issues of [not causing a Gentile to] go and make thanksgiving [to his deity] and of their wine per se -- because nowadays they are not so fervent [in their religion]. But [in general] it is clear that their worship is sheer idolatry, as Maimonides wrote in the 11th chapter of the Laws of Forbidden Foods, law 4 (in our editions of Maimonides's [Mishneh Torah] this clause is absent, but one should look at Amsterdam and Venetia editions); and it is also clear that one may neither push them [into a pit] nor lift them [from there]. [156]
The Gentiles to whom the Chatam Sofer refers here are Christians (Maimonides wrote in the Laws of Forbidden Foods 11:7 [157] that Moslems are not idolaters but Christians are; not surprisingly, in censored editions of Mishneh Torah the word "Christians" was replaced by "those who worship idols," or the whole clause dealing with the Christians was omitted). In the Chatam Sofer's view, they are sheer idolaters, and no mitigation of the harsh anti-Gentile Halachic laws may be applied to them.
R' Shalom Mordechai ha-Cohen Schwadron, who from the death of R' Isaac Elchanan Spector in 1896 until his own death in 1911 was considered the most authoritative Halachic arbiter of Ashkenazic Jewry, had no doubts regarding the authenticity of the Meiri's opinion, but he rejected it in favor of the views of all the other Halachic arbiters, ruling that, at most, one may rely on the Meiri's opinion not to harm Gentiles from the outset -- but not to prohibit the cancellation of repayment of debts to them or to demand the return of their lost items, for example. [158]
R' Chalfon Moses ha-Cohen of Jerba Island, Tunisia, came as close as possible to implementing ideas similar to the Meiri's in a Halachic verdict: in a responsum dated to 1929, R' Chalfon ruled that a Jew living in a Christian or Moslem state, whose laws obligate its citizens to return each other's lost items and sums overpaid in business transactions, should return such items and sums to his Gentile fellow citizens. [159] R' Chalfon gave four reasons for his ruling, the second of which is:
It seems that this ban [on returning Gentiles' lost items] applied only to the idolatrous nations of the ancient times; but nowadays, when the idolatry has ceased to exist in almost all parts of the world and all the [Gentile] nations believe in the Creator of the world, strive to investigate and clarify which things are just and true, and make no distinction [in these matters] between a Jew and a Gentile -- everyone certainly has to return to [all] his fellow citizens lost items and sums overpaid in business transactions.
This is a rather accurate representation of the Meiri's view, though the Meiri himself is not mentioned in this responsum in a single word. However, R' Chalfon gave no explanation for this quite radical Halachic approach, while building the other three reasons he brought for the ruling -- possible applicability of the principle "the state's law is [valid] law," extreme danger of desecration of God's name by a Jew's abstention from doing something prescribed by the state's law and general custom, and danger of growth of anti-Semitic sentiments stimulated by what the Gentiles would perceive as a Jew's arrogant conduct -- on much more solid Halachic foundations. [160] It is highly improbable that R' Chalfon would stick to his opinion in a situation where of his four reasons only the second one would be relevant (say, in a Christian state, whose laws do not demand the citizens to return lost items to each other and whose Gentile inhabitants are absolutely indifferent on whether their Jewish neighbors return them their lost items or not).
R' Abraham Isaiah Karelitz, [161] the celebrated leader of mid-20th century ultra-Orthodox Jewry, ruled unequivocally [162] that even nowadays is forbidden to sell real estate in the Land of Israel to Gentiles because of the Talmudic law:
[It is written:] "Give them no mercy" [163] -- do not give them estate in the land; another meaning: "Give them no mercy" -- do not ascribe to them grace; another meaning: "Give them no mercy" -- do not give them a gift. [164]
(Avodah Zarah 20a)
Following Maimonides, [165] R' Karelitz identified the ban on selling real estate to Gentiles, spoken of here, with the negative commandment spelled out by the verse of Exodus 23:33: "Do not allow them to live in your land, lest they may cause you to sin to Me -- you might worship their gods, which would be a fatal trap to you." And speaking of the non-applicability of this commandment to resident strangers, R' Karelitz noted that to be deemed a resident stranger in regard to this issue, a Gentile has, at least,
To hold fully the Jewish belief: that the Jews were commanded 613 commandments, and the Noahides -- 7 commandments. But one who holds certain false conceptions and adheres to them -- even if these conceptions have nothing to do with actual idolatry and he also observes the Seven Commandments because he considers them equitable -- he may not be considered a resident stranger, the negative commandment which prohibits letting [Gentiles] live in the Land of Israel applies to him also, and of him the Scripture says, "lest they may cause you to sin" by their heresy. [166]
That is, R' Karelitz absolutely denied any possibility that a Christian or a Moslem -- whose creeds are obviously not compatible with that of Judaism -- may enjoy the status of a resident stranger (or one similar to it). When Beit ha-Bechirah on Tractate Avodah Zarah -- in which the Meiri explicitly states that the laws derived from the verse "give them no mercy" do not apply to "nations restricted by the ways of religions and recognizing the Godhead" [167] -- was first published in 1944, R' Karelitz neither changed his ruling nor made any mention of this Meiri’s opinion in any of his Halachic writings.
Even R' Weinberg, who in a personal letter expressed his wish to declare the anti-Gentile Halachic laws invalid, held a contradictory view when it came to matters of the Halacha. In his responsum, addressed to R' Iser Judah Unterman, the Chief Rabbi of Israel at that time (1965), [168] R' Weinberg stated that a Jewish woman who had illicit sexual relations with a Gentile man should not be given the status of an adulteress, in accordance with Rabbeinu Tam's view that illicit sexual relations with a Gentile do not constitute adultery, since the Gentiles' semen is likened to that of horses. [169] Not only it is exactly the view about which R' Weinberg expressed his qualms in the letter to Prof. Atlas, he also designated the Gentile with whom the woman possibly had the relations -- obviously one from a European Christian nation -- "an idolater," in clear contradiction to the Meiri who used this term only in regard to nations professing a non-monotheistic creed.
Only in the last decades of the 20th century did influent Halachic arbiters begin to base their rulings on the Meiri's view -- but only in order to justify customs long practiced in Jewish-Gentile relations, and only when they thought the Meiri's opinion on the case to be supported by the opinions of other Rishonim. [170] And since the Meiri's view is unique, even this approach is incapable of producing a trend exempting those non-Jews who adhere to monotheistic creeds from the anti-Gentile Halachic laws, like the trend present in the Meiri's works themselves. [171]
To demonstrate the lack of trust of contemporary Halachic arbiters for the Meiri's view, it would be useful to turn to R' Nahum Eliezer Rabinowitz's responsa on matters of military and security service. [172] Looking for a permission to heal a wounded Gentile through desecration of Sabbath, [173] R' Rabinowitz turned to R' Zvi Hirsch Chajes's statements in Tif'eret le-Yisrael, speaking of Christians and Moslems as resident strangers. Not only was R' Rabinowitz completely aware, of course, of the purely apologetic nature of Tif'eret le-Yisrael, he also found himself confined by the dominant Halachic notion of a resident stranger as a Gentile who declares before a Jewish court of his commitment to observe the Seven Noahide commandments. As a last resort, he had to assert that in his "Last Supplement" to Minchat Kenaot R' Chajes had in fact rejected the notion of the necessity of such a declaration in court. However, not only was the "Last Supplement" in fact dedicated to proving that Christians and Moslems should not be considered resident strangers; the passage to which R' Rabinowitz referred [174] does not imply that in order to be considered a resident stranger it is sufficient for a Gentile to observe the Seven Commandments for any reason possible possible -- it speaks specifically of the observance of these commandments out of "continual tradition" " (kabbalah nimshekhet). Importantly, even this tradition has to stem, in R' Chajes's view, from God's revelation to Moses [175] -- which is obviously not the case with Christianity and Islam, in both of which revelations binding on the believers are connected with the founders of these religions rather than with the Pentateuchal lawgiver. So, R' Rabinowitz's argument is essentially flawed, and he, a well-versed Rabbinic scholar with an academic background, must have been perfectly aware of it.
Were R' Rabinowitz only to refer to the Meiri's dictum on Yoma 84b which, though inconclusive, leaves the possibility of making a decisive Halachic verdict allowing the saving of monotheistic Gentiles' lives through desecration of Sabbath -- and there would be no need to delve into the whole resident strangers' issue, where grounds for making such a verdict do not seem to exist; therefore, the very avoidance of any reference to the Meiri on R' Rabinowitz's part testifies quite well to less than feeble chances of the Meiri's view ever becoming a basis for a more or less comprehensive system of practical Halachic rulings.
So, any possible the usage of the Meiri's unique view on Jewish-Gentile relationship in contemporary Orthodox Judaism seems not to extend beyond the boundaries of outright apologetics and hypothetical Halachic constructs lacking a chance of being transformed into decisive practical rulings. But even were this not the case, would the Meiri's view solve the moral problems which modern Orthodox Jews have with the discriminatory anti-Gentile rulings of the Halacha? To this the answer is definitely no.
Let us recall that the Meiri's position, even embraced in full, would allow deeming the discriminatory rulings invalid only in regard to non-Jews belonging to monotheistic collectives -- nations and religions. Hindus, for example, with their scores of deities, would still be considered "idolaters not restricted by the ways of religions" -- with all the consequences. Or consider atheist nations, who obviously do not stand by the Meiri's demand for the belief "in God's existence, unity and power." What counts as an atheist nation? A survey conducted in 1991 by the sociologists Wolfgang Jagodzinski and Andrew Greeley [176] reported that in East Germany, which constituted an independent state at the time of the research, 58.6% of the population had no positive belief in God's existence -- such a nation may be rightly called atheist. (For those pedantic enough to consider the question of a presently nonexistent state irrelevant, it would be useful to note that in the Netherlands, for example, the rate of people having no positive belief in God's existence was 23%, and evidence spoke of an increase in the percentage of nonbelievers with time. Within decades agnostics and atheists may well become the majority of the Netherlands’ population.) So, is the Halachic discrimination against the Hindus morally justified, or was it justified against the Eastern Germans in 1991, or will it be justified against the Dutch in a few decades?
The Meiri's view is insufficient both to constitute at present a basis for a comprehensive system of practical Halachic rulings and to put the Halachic treatment of the problems of Jewish-Gentile relationship in line with the norms of contemporary Western morality. But is it in fact needed for the latter purpose? To this the answer is once again no.
Let us consider again the prohibition on healing Gentiles through desecration of Sabbath. Many American and almost all the Israeli hospitals employ Orthodox Jewish doctors, who treat Gentile patients on Sabbath even if thereby they commit a desecration of Sabbath. What about Halachic justification? The explanation provided by R' Obadiah Yosef [177] is typical for all the Halachic literature of recent decades:
So we find that nowadays there is a fear of greater animosity; and if Jewish doctors forbore from treating Gentile patients on Sabbath, letting them die from their diseases, this would bring a mortal danger upon the Jews -- for if Gentile doctors learned of such conduct, they would also cease treating Jewish patients, and hatred and jealousy towards the Jews would spread, endangering lives; so it is certain that the excuse proposed by the Talmud for a Jew [so that he may explain his avoidance from healing a Gentile], "We may desecrate the Sabbath [only] in order to save our folk, who observe the Sabbath," would not work nowadays. Furthermore, it follows that the main intent of a doctor, who desecrates the Sabbath by performing a kind of labor forbidden by the Torah in order to treat a Gentile patient, is to prevent mortal danger from coming upon Jews who are treated by Gentile doctors [178] -- for nowadays the media are greatly developed, and the matter will be spread in a moment over the whole earth, to all the corners of the world.
But is this Halachic construction solid? As R' Yosef himself pointed out, the Talmud forbids a Jew from healing a Gentile on Sabbath even when there is a danger of provoking animosity towards Jews:
They asked: but [we have learned that] a Jewess may help a Gentile woman give birth for pay, though not for free. Rav Joseph answered: she is permitted to do that for pay in order to prevent provoking animosity [towards Jews]. Rav Joseph also considered permitting [a Jewess] to help a Gentile woman give birth on Sabbath, in order to prevent provoking animosity [towards Jews] -- but Abaye said to him: she may claim, "We may desecrate the Sabbath in order to save our folk, who observe the Sabbath, but we may not desecrate the Sabbath in order to save your folk, who do not observe the Sabbath."
(Avodah Zarah 26a)
This ruling was unanimously accepted by later Halachic arbiters; R' Joseph Karo ruled in Shulchan Aruch [179] that "one may not help a Gentile woman to give birth, not even in a way in which there is no desecration of Sabbath" (the excuse which one may use to refrain from helping a Gentile woman to give birth on Sabbath R' Karo brought verbatim in Beit Yosef [180]), and as late as about 1900, R' Israel Meir ha-Cohen [181] of Radin wrote vehemently:
Know that the doctors of our time, even the most religious, are not careful about this at all, for every Sabbath they travel beyond the allowed limits to heal idolaters, and they write [recipes] and grind substances [182] [to prepare medicines]... and [thus] they desecrate the Sabbath completely and willfully, God save us.
(Mishnah Berurah, paragraph 330, subsection 8)
In Czarist Russia where R' Israel Meir lived, anti-Semitic sentiments were always high, and about the beginning of the 20th century the Russian press was developed enough to turn any incident of a Jew's refusal to treat a Gentile patient on Sabbath into a flash point for a wave of pogroms. Nevertheless, R' Israel Meir considered the excuse proposed by the Talmud sufficient to persuade those Gentiles who would be ready to analyze the matter -- those whose hatred of the Jews cannot be cured by any argumentation should not, apparently, be taken into consideration from the start. (And after all, is the Talmudic excuse that bad? Judaism does not permit violation of every single commandment in order to save one's life. For example, if one is forced under the threat of death to have sexual relations with his fellow's wife, he must choose death [183] -- even if the woman wishes to have sex with him. It is mainly the fact that this excuse is only an excuse and that under "ideal" conditions one may not save a Gentile's life at all which makes the whole issue so problematic from the ethical viewpoint.)
So what has happened in the last 100 years? R' Yosef provided a hint:
The brilliant rabbi R' Obadiah Hadayah also dealt with this issue in his responsa Yaskil Avdi, part 6 (in the "Omissions" section, p. 297b, paragraph 9), and ruled that [treatment of Gentiles through desecration of Sabbath] is forbidden, according to what is written in Mishnah Berurah that doctors who behave leniently in regard to this point desecrate the Sabbath completely and willfully. But he finished his verdict with the statement: "Yet, in fact, even the most pious doctors are lenient on this issue because of the fear of provoking animosity [towards Jews], and there is nothing to do, since the generation is not choice and does not obey the voice of the teachers." [184]
And though R' Yosef stated that he found some additional Halachic support for the permission to treat Gentile patients through desecration of Sabbath, his general attitude remained the same: "Therefore, let the Jews do what they will, for if they are not prophets themselves, they are sons of prophets." [185]
This is the essence of the whole matter: first religious Jewry becomes accustomed -- for any reason whatsoever -- to certain modes of conduct, then Halachic arbiters come and find justifications for such conduct. And as the latter are just what they are -- justifications -- they neither need firm Halachic grounds to be accepted nor leave much room for the Halachic arbiters themselves to hesitate over the final verdict. If the Orthodox Jewish public starts treating non-Jews as equal human beings -- on Sabbaths and on weekdays, in property matters and on other issues -- and persists in that attitude for a long while, justificative Halachic rulings will follow. As the old but still true saying goes, vox populi -- vox Dei.
[1] In a letter of November 15, 1965 to Prof. Samuel Atlas; quoted in Marc Shapiro, "Scholars and Friends" (The Torah U-Madda Journal, v. 7, 1997), p. 118. Italics in Shapiro.
[2] "The Rishonim" is the common designation for the Halachic arbiters who lived from c. 1000 CE (the period of R' Gershom "the Light of the Exile" and R' Chananel of al-Qayrawan, Tunisia) to the 1570s (when R' Joseph Karo and R' Moses Iserless passed away).
[3] More examples will be brought in this essay; for a quite comprehensive overview of Halachic laws discriminating against non-Jews see R' David Bar-Chayim, "Yisrael Nikrayim Adam" (Tzfiyah, v. 3, 1989), pp. 45-73.
[4] The text of these mishnahs -- as that of all the other mishnahs cited in this essay -- is quoted from the Mishnah with Maimonides's commentary, edited by R' Joseph Kapach in accordance with the original manuscript of Maimonides's commentary and published by Mossad ha-Rav Kook, 1963 (henceforth, any specific edition of a text will be referred to by the editor's name, or by the name of publishing house if the editor is unknown). This edition has the advantage of the Mishnah text being preserved in its original form, uncorrupted by Gentile censorship.
[5] In the beginning of Beit ha-Bechirah on Avodah Zarah.
[6] Brought in the first chapter of Tractate Avodah Zarah.
[7] Wine thought to be used for idol worshipping.
[8] That is, wine of non-Jews in general, even if it lacks any cultic usage.
[9] Page 59 in R' Abraham Sofer's edition.
[10] Beit ha-Bechirah on Avodah Zarah, 38b (page 132 in Sofer's edition).
[11] This term is often used by the Meiri with slight variations, such as "nations restricted by ways of religions and customs" (umot ha-gedurot be-darkei datot ve-nimusim) or "anyone restricted by religious ways" (kol ha-gadur be-derachim datiyim, meaning a non-Jew). In each case, however, the meaning of the term is the same.
[12] Proverbs 15:25.
[13] Psalms 94:1.
[14] Page 207 in Shmuel Dikman's edition.
[15] Exodus 21:35.
[16] In order to demonstrate the general attitude of the Rabbinic literature to Gentiles, it may be appropriate to cite here Maimonides's commentary on this mishnah: "When there is a case between a Jew and a Gentile, it should be judged in the following way. If our [i. e. Jewish] side can win the case in accordance with their [the Gentiles'] laws, we should judge the case according to their laws and say them, 'This is your own law.' If it would be better for our side to judge [the case] according to our laws, we should judge it according to our laws and say, 'This is our law.' Now, let this matter not be difficult for you, and don't be embarrassed by it -- just as you are not embarrassed by slaughter of animals even though they have made no harm; for one whose human qualities are imperfect is not really a man, an his raison d'etre is only to benefit the 'man' [one who is man proper]" (cited from R' Joseph Kapach's edition).
[17] According to the Meiri's manuscript rendering, it should be "Gentile" -- however, the wording in each case was left (as a rule) as it is in the edition cited by the author (the Vilna edition, in this case).
[18] Habakkuk 3:6.
[19] Deuteronomy 33:2.
[20] Listed in Sanhedrin 56a: the commandment to administer the law and the bans on cursing God, on idolatry, on illicit sexual relations, on bloodshed, on robbery and theft, and on consuming flesh taken from a living animal.
[21] Page 120 in Schlesinger's edition.
[22] Avodah Zarah 26a-b. In most printed editions of the Talmud the term "idolaters" is used instead of "Gentiles;" however, in the text cited in Beit ha-Bechirah (edited according to the Parma manuscript and printed by Abraham Sofer, 1965) the wording is "Gentiles."
[23] Who are accustomed to commit the sin of robbery by feeding their cattle from others' fields.
[24] It was Aristotle who was called by medieval Jewish (and non-Jewish) authors "the chief of philosophers" (see e. g. Maimonides, Guide for the Perplexed 2:23). The maxim cited by the Meiri is, however, not found in the writings of Aristotle himself, and the most likely source for it is a Hebrew translation of some portions from the Arabic moralistic treatise Mizan al-'Amal ("Criterion of Action"), attributed to Abu Hamid al-Ghazali (though apparently it was given its final form by someone else -- see W. M. Watt, "The Authenticity of the Works Attributed to al-Ghazali, JRAS, 1952, pp. 39-40, 45; idem., "Muslim Intellectual," Edinburgh University Press, 1963, pp. 67-68). The Hebrew translation (published by Judah Leib Dukes in Otzar Nechmad, v. 2, pp. 196-198) states: "Therefore Aristotle said: 'You should not only know, but you should also act, and your conduct should be good and just.' He also said: 'Kill anyone who has no religion.'" The last quote, however, resembles the Hadith (Moslem legal tradition) saying, "Whoever changes his religion [from Islam to another one], kill him," much more than any of Aristotle's ethic maxims.
[25] Pages 59-60 in Sofer's edition. It may be safely stated that by "any of the worshippers of God, even if he does not belong to the religion" the Meiri meant here the same category of non-Jews who are otherwise defined as "restricted by the ways of religions" -- compare, e. g., the mention of "nations restricted by ways of religion and worshipping God in any way, even if their belief is very different from ours" in a fragment cited below, referring to the same category. Correspondingly, by saying that such worshippers of God do not "belong to the religion" (in singular), the Meiri must have meant that they are not affiliated with Judaism.
[26] Beit ha-Bechirah on Horayot 8a (page 265 in Sofer's edition).
[27] Bava Kama 113a.
[28] Page 320 in Schlesinger's edition.
[29] Some scholars were baffled by this formula -- why did the Meiri have to specify that it is defrauding in commercial matters (the Halachic term for overcharging by more than 1/6) which is prohibited towards Gentiles "restricted by religious ways," if half a sentence earlier he excluded idolatrous Gentiles from the prohibition against defrauding in general? [See Gerald Blidstein, "Menachem Meiri's Attitude Toward Gentiles" (in "Jewish Intellectual History in the Middle Ages," ed. by J. Dan, Praeger Publ., London, 1994), p. 121.] There is, however, no reason for bafflement. The Talmud ad loc. emphasizes that it speaks of insulting people verbally, not of overcharging them (in Talmudic Hebrew, the both actions are expressed by the same term -- ona'ah). Therefore, it was quite reasonable for the Meiri to clarify which kind of ona'ah he means.
[30] Leviticus 25:17.
[31] Page 219 in Schlesinger's edition.
[32] In the Meiri's rendering, the term min means "apostate" (that is, a convert to idolatry) -- one of the two possible meanings given to it by the Talmud (Avodah Zarah 26b). The term meshumad is used by him for "transgressor," as it was used in fact by the Talmud itself: the Meiri (on Avodah Zarah 26b) speaks of meshumad eating non-kosher meat for his pleasure (without renouncing Judaism altogether), and from his commentary it is evident that this was also the wording of the Talmud manuscript he used. However, already early Tannaitic sources speak of meshumad as one who renounces Judaism altogether (see e. g. Tosefta, Sotah 4:28); in later periods, this became the main meaning associated with the term meshumad. In the 16th century, under the pressure of censors, the term meshumad was replaced in the printed editions of the Talmud by a more neutral term mumar (Encyclopedia Hebraica, shmad, v. 32, p. 32). The term apikoros is used both by the Talmud and the Meiri for "heretic."
[33] Page 275 in Sofer's edition.
[34] R' Moses Sofer, 1762-1839
[35] Also called Shitah Mekubetzet; a compendium of commentaries of many Rishonim on the Talmud, compiled in the 16th century by R' Betzalel Ashkenazi.
[36] I. e. the dictum forbidding a judge to practice favoritism to a Jew in a legal case between a Jew and non-Jew belonging to a nation "restricted by the ways of religion" (on Bava Kama 113a; see above).
[37] Chatam Sofer, Kovetz Teshuvot (Responsa Anthology), paragraph 90.
[38] Plural of ram (rosh metivta) -- title of a lecturer on Halachic and Talmudic matters in a yeshiva.
[39] See e. g. R' David Zvi Hilman, "Leshonot ha-Meiri she-nichtevu le-tshuvat ha-minim" (Tzefunot, v. 1, no. 1, September-October 1988, pp. 65-72).
[40] Chatam Sofer, Responsa, part 5 (Choshen Mishpat), paragraph 165; part 6 (collected responsa), paragraph 64.
[41] See the foreword by R' Abraham Sofer to the first edition of Beit ha-Bechirah on Avodah Zarah.
[42] See Chatam Sofer, Responsa, part 1 (Orach Chayim), paragraph 192.
[43] Encyclopedia Hebraica, (ha-)Meiri, R' Menachem ben Shelomo, v. 22, p. 76.
[44] Actually, on fol. 113a; p. 320 in Schlesinger's edition.
[45] Page 115 in Abraham Lis's edition.
[46] For obvious reasons, this story was omitted from the printed editions of the Talmud, and generally is omitted even now. However, passages of this kind omitted from the Talmud editions (from the Gemara, the commentaries of Rashi, Tosafot, and Rosh, and from Maimonides's commentary on the Mishnah) because of censorship were printed in a special collection by Immanuel Bambeshti in Amsterdam in 1644, then reprinted, with the addition of passages omitted from the Maharsha commentary because of censorship, under the title Chesronot ha-Shas in Krakow, (year and publisher unknown), and recently reprinted by the Kest-Leibowitz Institute for Support of the Torah Study.
[47] "Leshonot ha-Meiri she-nichtevu le-tshuvat ha-minim," p. 72.
[48] Nedarim 28a, Bava Kama 113a-b, Bava Batra 54b.
[49] Gittin 10b.
[50] Avodah Zarah 6b.
[51] On Avodah Zarah 2a, s. v. asur.
[52] From these words it is evident that the Tosafot spoke specifically of Christians, whose saints' days, abundant in the Church calendar, should not be classified as "feasts of Gentiles," spoken of in the mishnah, since those saints were not considered deities.
[53] In Avodah Zarah 6a.
[54] Because "three days before and three days after" Sunday (including, of course, that day itself) would cover all the week.
[55] Chulin 13b.
[56] Avodah Zarah 7b.
[57] Beit ha-Bechirah on Avodah Zarah 2a (page 4 in Sofer's edition).
[58] Ibid. (p. 2 in Sofer's edition).
[59] Page 18 in Sofer's edition.
[60] According to Leviticus 19:9, 23:22.
[61] According to Deuteronomy 24:19.
[62] According to Leviticus 19:9, 23:22.
[63] Page 250 in Schlesinger's edition.
[64] Page 108 in Sofer's edition.
[65] Brought in Gittin 62a.
[66] Ibid.
[67] Jeremiah 44:18.
[68] Pages 257-258 in Schlesinger's edition.
[69] Shabbat 156a.
[70] Page 615 in Samson Lange's edition.
[71] Yoma 84b.
[72] Beit ha-Bechirah ad loc., emphasis added.
[73] See e. g. Moshe Halbertal, "Bein Torah le-Chochmah" (Magens Press, Jerusalem, 2000), pp. 103-108.
[74] See e. g. the Meiri's Chibur ha-Teshuvah (p. 540 in Sofer's edition), in which he claims the moral virtues -- "to despise the evil and to choose the good" -- stem from the God-revealed Torah. All the other monotheistic (and moral) religions came into being, according to the Meiri, only as "imitations and simulations of our perfect Torah" (Chibur ha-Teshuvah, p. 305 in Sofer's edition).
[75] Beit ha-Bechirah on Horayot 8a (p. 265 in Sofer's edition).
[76] R' Jacob ben Meir, c. 1100-1171.
[77] See J. David Bleich, "Divine Unity in Maimonides, the Tosafists and Me'iri" (in "Neoplatonism and Jewish Thought," ed. by L. Goodman, State University of New York Press, 1992), pp. 239-242. The ruling of Rabbeinu Tam (brought in the Tosafot on Bechorot 2b, s. v. shema) is ambiguous enough to allow dispute on whether he deemed Christianity not to fall under the category of idolatry (for Gentiles) or merely permitted causing its adherents to take an oath in the name of the Trinity, but generally his dictum is interpreted as stating that Christianity is monotheistic enough for Gentiles. Though Bleich distinguishes between the apparent view of Rabbeinu Tam and that of the Meiri, there is little reason for such a distinction. Nowhere does the Meiri state that in his view Christianity is more than shituf. Nowhere in his writings does he deal with Christian doctrine at all, nor even mention this religion by name, using instead the term "nations restricted by the ways of religions" (though it is more than clear that he applies this term to Christians -- and that, correspondingly, it may be applied to the far more monotheistic Moslems). The Meiri could well deem Christianity a shituf -- and treat it as a religion monotheistic enough for Gentiles.
[78] See "Divine Unity in Maimonides, the Tosafists and Me'iri," pp. 246-251.
[79] Published by the Complete Israeli Talmud Institute according to the Parma manuscript, edited by Joseph ha-Cohen Klein.
[80] Page 212 in Klein's edition.
[81] Bava Kama, chapter 4, halacha 3.
[82] Tractate Nezikin, section 12.
[83] Exodus 21:35.
[84] "The others" (acherim) is a common designation for Gentiles in Halachic midrashes.
[85] See Avodah Zarah 64b. The first of these opinions was totally rejected by later Halachic arbiters; the second -- accepted, as a rule; the third -- accepted in some cases, as will be shown here.
[86] Beit ha-Bechirah on Avodah Zarah 64b (p. 255 in Sofer's edition). The Meiri admitted that in regard to some permissible leniencies concerning the contact of a resident stranger with a Jew's wine, the resident stranger is any Gentile who renounces idolatry -- but in regard to all other matters, in his opinion, a Gentile's declaration before a Rabbinic court of his commitment to observe the Noahide commandments was necessary to make him a resident stranger.
[87] Pages 363-364 in Klein's edition.
[88] A Halachic designation for a Gentile who properly observes the Seven Noahide Commandments -- see Maimonides, Mishneh Torah, Laws of Kings 8:11.
[89] Beit ha-Bechirah on Sanhedrin 57a-b (p. 226 in Sofer's edition).
[90]
In most printed editions of the Talmud, the word "Christians" is replaced by "on Sunday" -- a smokescreen against censors, the true nature of which it is not hard to discover: after all, why should the ban on business negotiations on Sunday specifically cause any problems in regard to the permission for such negotiations on Wednesday and Thursday? (Compare this to the alleged smokescreens of the Meiri.) Not surprisingly, in several Talmud manuscripts the wording "Christians" is preserved [see L. Zalcman, "Christians, Noşerim and Nebuchadnezzar's Daughter" (JQR, v. 81, 1990-91), p. 412, nn. 4-6]. This was, evidently, also the wording of the Talmud manuscripts used by Maimonides, who based one of the rulings of his Mishneh Torah on it, and by the Meiri himself -- for he quoted this wording in his treatise on Tractate Avodah Zarah, though, as will be immediately shown, it constituted a serious difficulty for him.
[91] 4:16.
[92] Page 4 in Sofer's edition.
[93] Lawrence Zalcman ("Christians, Noşerim and Nebuchadnezzar's Daughter") suggested that the Meiri's dictum on notzerim was influenced by a Mandaean legend of Nebuchadnezzar's and his daughter's conversion to that religion, a legend in which a certain group of Mandaeans is termed Natzurai. This proposition is, however, extremely fanciful: Mandaeanism has a very small number of adepts, and the legend about Nebuchadnezzar and his daughter is one of minor importance, with tremendously small chances to be known to anybody outside the narrow circle of Mandaeans and academicians who made the Mandaeans their field of research (something not to be found in the Middle Ages); literature on Mandaeanism is quite sparse even now, and was close to nonexistent in the Middle Ages -- which makes the chances that anything about Mandaeans could be known to the Meiri in 13th-century Provence practically zero; none of medieval works preserved to our days mentions the term Natzurai in regard to any religion similar to Mandaeanism; no clear notion of Mandaeanism itself seems to be known to the medieval authors (who could not even distinguish between Gnostic Mandaeans and pagan Sabians of Harran); the Mandaeans do not worship the Sun; and, finally, according to the legend, Nebuchadnezzar embraced Mandaeanism only after he left the Babylonian throne for the sake of the secret knowledge, when he was not king any more. There may be very little doubt that the connection between the notzerim of Jeremiah 4:16 and Nebuchadnezzar, drawn also by other Jewish commentators (besides the Meiri), is of purely phonetic origin.
[94]
Avodah Zarah 6b.
[95] Laws of Idolatry 9:4; in censored editions, the word "Edomites" was replaced by "Canaanites," but in manuscripts and non-censored editions it remained "Edomites," and from the context it is perfectly understood that Christians are meant (see Encyclopedia Hebraica, avodah zarah, v. 26, p. 621).
[96] R' Shelomo ben Abraham Aderet, 1235-1310.
[97] Torat ha-Bayit, book 5, chapter 4.
[98] Pages 117-118 in Isaac Lange's edition.
[99] Fol. 19a.
[100] Yevamot 97b.
[101] Page 354 in Dikman's edition.
[102] Deuteronomy 23:21.
[103] Sifri on Deuteronomy, section 263.
[104] Page 267 in Schlesinger's edition.
[105] See e. g. the abovementioned dictum of the Meiri on Bava Kama 37b (p. 120 in Schlesinger's edition).
[106] See e. g. the Meiri's dictum on Avodah Zarah 20a (p. 46 in Sofer's edition), where he interprets the Talmudic ban on giving gifts to Gentiles as referring to idolaters only and based on the fact that one who gives a gift to an idolatrous Gentile thereby "steals" it from one to whom it is due -- namely, from the resident stranger to whom the priority in receiving gifts from the Jews is given by the Torah: "Do not eat any carcass; give it to the stranger who is within your gates, or sell it to a Gentile [nochri]" (Deuteronomy 14:21).
[107] See Richard Emery, "The Jews of Perpignan in the Thirteenth Century" (Columbia University Press, New York, 1959), p. 28.
[108] See Salo Baron, "A Social and Religious History of the Jews" (Jewish Publication Society of America, Philadelphia, 1952-1973), v. V, pp. 197-215.
[109] Laws of Creditors and Debtors 5:1. To Maimonides, the commandment to charge Gentiles interest on loans was a commandment in and of itself, intended to harm the Gentiles (see his Sefer ha-Mitzvot, positive commandment 198). Nahmanides (in his criticism on the 6th principle of Sefer ha-Mitzvot and in his comment on Deuteronomy 15:3) sided with the Ra'avad.
[110] See "A Social and Religious History of the Jews," v. IX, pp. 44-53.
[111] Avodah Zarah 26a-b.
[112] R' Abraham Sofer remarked on the Meiri's dictum ad loc.: "It is an absolutely novel approach, since all the Rishonim wrote that the phrase 'should neither be lifted…' means a prohibition on lifting them [from a pit]."
[113] Page 320 in Schlesinger's edition.
[114] In Beit ha-Bechirah on Bava Kama 73a (pp. 213-214 in Schlesinger's edition).
[115] See "A Social and Religious History of the Jews," v. IX, pp. 5-11. This doctrine was, unfortunately, often observed in breach.
[116] See e. g. Yevamot 98a: "God declared their acts of siring [Halachically] invalid, as it is written: 'Their flesh is like the flesh of asses, their semen is like the semen of horses' (Ezekiel 23:20)."
[117] C. 1488-1575.
[118] In Europe, except for its southern parts, they were accepted as a rule, but many particular verdicts were rejected in favor of different verdicts on the same questions made by local Halachic arbiters (chiefly by the Rama -- R' Moses Iserless, c. 1525-1572).
[119] In full, Sefer ha-Turim; R' Jacob ben Asher lived from c. 1270 to 1340.
[120] Deuteronomy 22:3.
[121] Whom all the Halachic arbiters deemed to be non-idolaters.
[122] See Avodah Zarah 65a.
[123] See glosses ad loci in the edition of the Tur published by Machon Yerushalayim (1994); see also E. E. Urbach, "Shitat ha-Sovlanut shel R' Menachem ha-Meiri," p. 44, n. 52.
[124] 1561-1640. Commenting on the wording of the Tur in Choshen Mishpat 249 and R' Karo's interpretation of it, R' Sirkis wondered why the author of the Tur would mention "idolaters" rather than "Gentiles" in regard to this law, creating thereby grounds for confusion concerning the Moslems. R' Sirkis's conclusion was that the wording "idolaters" was merely a smokescreen used by the author of the Tur against Gentile authorities, but his real intention was to all the Gentiles. Not surprisingly, but curiously, in later editions of Bayit Chadash the conclusive statement was omitted for the same reasons why the wording of the Tur was disrupted -- which made R' Sirkis's statement confirm the disruption of the Tur instead of correcting it. The full wording of Bayit Chadash ad loc. was brought in the Machon Yerushalayim edition of the Tur (in which Beit Yosef and Bayit Chadash are also printed in full).
[125] E. g. R' Abraham Isaac ha-Cohen Kook, Mishpat Cohen responsa, paragraph 63; R' Elijah Kletzkin, Imrey Shefer responsa, paragraph 92; R' Obadiah Yosef, Yabi'a Omer responsa, part 8, Choshen Mishpat, paragraph 2.
[126] Thus it is in the early printed editions of the Tur and in manuscripts, unaffected by censorship. In later editions, the wording of this clause was changed to "an error of a Samaritan was permitted" (see glosses ad loc. in the Machon Yerushalayim edition of the Tur). This rewording also bears unmistakable signs of being only a camouflage: R' Jacob ben Asher himself stated in the foreword to the Choshen Mishpat section of the Tur that this work was intended as a codex of practical Halachic rulings -- what could it have to do with laws of Jewish-Samaritan relations, practiced sometime in the past? Moreover, in the 14th century, when the Tur was written, the Samaritan population was confined mainly to Shechem, Damascus, and Cairo, numbering only thousands. It was the last thing to interest the Jews of Christian Spain, among whom R' Jacob ben Asher lived.
[127] Beit ha-Bechirah on Bava Kama 113b (p. 320 in Schlesinger's edition).
[128] 1637-1683.
[129] Deuteronomy 7:2, and see Avodah Zarah 20a.
[130] Written in the 1660s.
[131] Shulchan Aruch, Choshen Mishpat, paragraph 425, section 5.
[132] In Tosafot on Bechorot 2a, s. v. shema.
[133] R' Asher ben Jechiel (c. 1250-1327), in his commentary on the Talmud, Tractate Sanhedrin, chapter 7, paragraph 3.
[134] Avot 3:2.
[135] Mishneh Torah, Laws of Kings 8:10-11.
[136] Avodah Zarah 26a-b.
[137] Avodah Zarah 65a.
[138] R' Judah Löwe ben Betzalel, c. 1512-1609.
[139] Be'er ha-Golah, chapter 7 (pp. 144-146 in Ch. Y. L. Hanig's edition, published by Yahadut publishing house, Jerusalem, 1971).
[140] See Be'er ha-Golah, foreword (p. 11 in Hanig's edition).
[141] Yoreh De'ah, paragraph 124.
[142] 1805-1855.
[143] Pages 489-490 in the compendium of R' Chajes's works, published by Divrei Chachamim publishing house, Jerusalem, 1958.
[144] Ibid., pages 1032-1036.
[145] In Bava Kama 38a.
[146] Habakkuk 3:6.
[147] First published in 1902.
[148] Torah Temimah, ibid.
[149] Bava Kama 113b.
[150] Avodah Zarah 26b.
[151] Sanhedrin 44a.
[152] The Jerusalem Talmud, Bava Metzia 2:5; Maimonides, Mishneh Torah, Laws of Theft and Lost Items 11:3; the Tur, Choshen Mishpat, paragraph 266; Shulchan Aruch, ad loc., section 1.
[153] Published in Igrot ha-Raayah, no. 89, v. 1, p. 99 (in Mossad ha-Rav Kook edition, Jerusalem, 1962).
[154] It may be claimed that R' Kook based his statement on the Meiri's dictum as brought in the 1885 edition of Beit ha-Bechirah on Tractate Yoma, where the ban on the desecration of Sabbath in order to save Gentiles' lives is explained by the fact that "they have no religion and are not concerned with the duties of human society." But first, this wording is most likely a distortion made because of the fear of Gentile authorities, as explained above; second, in this particular dictum the Meiri did not, for obvious reasons, make a positive ruling that Gentiles who "have religion and are concerned with the duties of human society" should be saved from death via desecration of Sabbath; and third, even in the form brought in the 1885 edition the Meiri's dictum speaks both of Gentiles' "irreligiosity" and their lack of concern "with the duties of human society" -- that is, the concern with the latter duties alone is, in the light of this dictum, utterly insufficient to consider a certain Gentile collective "resident strangers in regard to all human obligations."
[155] Mishpat Cohen responsa, paragraph 58.
[156]
Chatam Sofer, Responsa, part 2, Yoreh De'ah, paragraph 131.
[157] Thus it is in the most modern editions of Mishneh Torah -- but the partition of Maimonides's text into laws often differed from one edition to another, and, evidently, in the editions used by the Chatam Sofer this law was marked as law no. 4.
[158] R' Schwadron, Responsa, part 5, paragraph 41.
[159] Shoel ve-Nish'al responsa, part 2, Choshen Mishpat, paragraph 13.
[160] To be sure, R' Chalfon's application of the principle "the state's law is [valid] law" to the issue of returning lost items is a far-reaching novelty in itself; R' Chalfon based it on the Rama's statement in his glosses to Choshen Mishpat 369:11, but his rendering of the latter statement is contradictory to its rendering by almost all the earlier Halachic arbiters (see R' Joshua Katz, Sefer Meirat Einayim, Choshen Mishpat, paragraph 369, subsection 21; R' Shabbetai Cohen, Siftei Cohen, Choshen Mishpat, paragraph 73, subsection 39; R' Moses Zakut, Responsa, paragraph 37; R' Solomon Ibn Danan, Asher le-Shelomo responsa, paragraph 52). Yet, this novelty is at least provided by its author with a Halachic rationalization, while the statement which is similar to the Meiri's view is left without any rationalization or justification whatsoever.
[161] Also known as the Chazon Ish (in the name of his main Halachic work), 1878-1953.
[162] In Chazon Ish on Tractate Shevi'it, paragraph 24 (in the edition published by Kulmus printing house, Bnei Brak, 1958).
[163] Deuteronomy 7:2.
[164] This exegesis is based on the similar form of Hebrew words and expressions for "give them no mercy" (lo techanem), "estate" (chanayah), "grace" (chen), and "gift" (matanah shel chinam).
[165] Sefer ha-Mitzvot, negative commandment 51.
[166] Ibid., section 3.
[167] Page 46 in Sofer's edition.
[168] Published in R' Iser Judah Unterman, Shevet mi-Yehudah (Ariel publishing house, 1993), v. 2 (responsa), pp. 263-264.
[169] Tosafot on Tractate Ketubot 3b, s. v. ve-lidrosh lahu.
[170] R' Obadiah Yosef, Yabi'a Omer responsa, part 8, Choshen Mishpat, paragraph 2; R' Eliezer Judah Waldenberg, Tzitz Eliezer responsa, part 15, paragraph 47; R' Pinechas Zevichi, Ateret Paz responsa, part 1, vol. 3, Choshen Mishpat, paragraph 12.
[171] For example, R' Zevichi, using the Meiri's dictum on the laws derived from the verse "give them no mercy" in order to permit selling real estate in the Land of Israel and giving gifts to Moslems, nevertheless rejected his notion of Christians as a collective "restricted by the ways of religion" -- though R' Zevichi permitted giving gifts to one's Christian employees (yet not close to Christian holidays) out of different considerations (see Note 1 to R' Zevichi's responsum mentioned in the previous footnote).
[172] Melumadei Milchamah, ed. by Rafael Reches, Ma'aliyot publishing house, Ma'aleh Adumim, 1993.
[173] Ibid., p. 145.
[174] Page 1036 in the compendium of R' Chajes's works.
[175] Ibid., p. 1035.
[176] The Demand for Religion: Hard Core Atheism and 'Supply Side' Theory.
[177] Yabi'a Omer responsa, part 8, Orach Chayim, paragraph 38.
[178] Which may turn such doctors into violators of only a Rabbinic prohibition, not a Torah prohibition, since the Torah, according to a principal concept of Halachic reasoning, prohibited only labor which is intended for its own sake (though the question of whether in our case the intent of preventing reciprocal neglect of Jewish patients by Gentile doctors is sufficient to turn the violated Torah's prohibitions into Rabbinic ones is by no means definitely solved -- R' Yosef refrains from making a decisive verdict on this point).
[179] Orach Chayim 330:2.
[180] Yoreh De'ah, 154.
[181] Also called the Chafetz Chayim (for the name of his early work), 1839-1933. On his main Halachic treatise, Mishnah Berurah -- accepted as the decisive Halachic codex in matters of day-to-day conduct by the vast majority of present-day Ashkenazic Orthodox Jewry -- R' Israel Meir worked for 28 years, publishing each of its six parts as it was finished. The first part was published in 1884, the last -- in 1907.
[182] Both these actions are considered to be forbidden for a Jew to perform on Sabbath by the Torah's law.
[183] Sanhedrin 74a; Maimonides, Mishneh Torah, Laws of the Torah Fundamentals 5:2; Shulchan Aruch, Yoreh De'ah 157:1.
[184] Yabi'a Omer, ibid.
[185] Ibid. Fully aware of the problematic character of his ruling, R' Yosef recommended that Jewish doctors shirk from treating Gentile patients through desecration of Sabbath as long as they can, and stated that it would be good for the hospitals to employ Gentile doctors and nurses to treat Gentile patients on Sabbath, as the Jerusalem Orthodox-affiliated Sha'arei Tzedek and Bikur Cholim hospitals do. However, there is hardly a chance that the latter recommendation will ever be employed by a hospital not affiliated with Orthodox Judaism in Israel or in any other country, and the former advice still leaves much room for the doctors themselves to decide.
Discussion
